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Washington Journal of Law, Technology & Arts

Abstract

E-mails occupy an ambiguous space between informal oral conversation and formal written documents. Their legal significance in contract modification is, however, becoming increasingly clear. In April 2008, the Supreme Court of New York, Appellate Division, decided Stevens v. Publicis, S.A. and in the process, raised the legal status of e-mail exchanges in the context of contract modification. Before Stevens v. Publicis, S.A., an e-mail could constitute a “signed writing” under New York law, thus satisfying the statute of frauds. An e-mail exchange could also amend a contract if, for instance, it had been validated by the parties’ reliance on it. After Stevens v. Publicis, S.A., e-mails may also satisfy a “no-oral-modification” (NOM) clause—the contractual obligation to memorialize contract modifications inwritten and signed documents—without requiring additional contractual validation. This Article discusses the legal underpinnings of this decision and offers practical guidance for attorneys attempting to avoid contract modification by e-mail.

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