Many business contracts have what are generally called “notice provisions.” These generally state that, for some particular issue related to the contract or breach of the contract, one party must notify the other side. Examples include a “notice of termination” or a “notice of breach.” Generally, some sort of time frame is indicated and generally some sort of method is indicated. There is often a clause specifically related to sending notices. Here is an example of such a clause:

“Notice. Any notices required or permitted to be given under this CONTRACT shall be given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, (c) by facsimile, or (d) by a commercial overnight courier that guarantees next day delivery and provides a receipt, and such notices shall be addressed as follows: [ADDRESS].”

There are probably a few readers asking: “What is a facsimile?” If you read a contract a few decades ago, there would probably also be reference to notice via a telecopier. Now most readers are asking: “What was a telecopier?” As an aside, do not make the mistake of thinking an old contract is no longer valid and enforceable just because the contract is old. Legally, a contract remains binding as long as the parties are still abiding by the terms of the contract.

In any event, under the above-quoted provision, an interesting legal question arises whether sending a text message would be a valid form of notice. As with most legal issues, the answer is “maybe.” Parties should anticipate how communication technology is advancing and try to incorporate language into their contracts that cover future communication evolutions. An experienced San Diego corporate lawyer can help.

Back to the question: What would a judge do if asked to resolve the question of whether notice-via-text-message is sufficient under the above notice provision? At the one extreme, a judge might simply say that, because “text messaging” was not listed as a form of notice, then notice-via-text-message would not be compliant with the contract. This is one reason to consult an experienced corporate attorney to obtain advice and counsel before taking action. If you send a text, which is not a listed method, you are taking a risk.

That being the case, it is possible that you might have a judge who is not a literalist and such a judge might look more deeply at what is common about the allowable forms of notice. Practically and legally, the allowable forms of notice in the above-clause have three important characteristics:

• The notice is written
• The form of delivery is one that can be verified — there is “proof” of delivery (which defeats a claim by the other side that “I did not get the notice!”) and
• The notice is conspicuous

In terms of “proof of delivery,” “in-person” delivery can be verified by testimony from the person who delivers the message; certified mail and courier delivery both provide certification of delivery from the delivery services; and likewise, delivery via facsimile created “proof” of delivery via programming built into the fax machine that could be printed. In terms of conspicuousness, if someone personally hands you a letter, that is unusual and will cause the typical person to “pay attention.” Certified letters and overnight letters are also unusual and will prompt a reasonable person to “pay attention.” In the past, faxes were somewhat common, but still, faxes commanded a certain level of attention particularly since a person in the office was generally designated to retrieve the faxes from the machine and deliver them to the intended recipients.

Considering the foregoing, a judge might conclude that a text message satisfies two of three — the text is a written message and, via programming and the communication technology, it can be confirmed that the text was sent and received. However, in this day and age, text messages are very common and there is nothing to highlight or make prominent any given text message. As such, a text about a contract might be lost among the multitude of texts. For this reason, maybe, the judge determines that the text message was not sufficient notice under the contract. On the other hand, if the receiving party responds to the text, then the concern about conspicuousness is no longer relevant and, maybe the judge deems the text message to be compliant.

The lesson here is, again, seek legal advice before taking action and retain an experienced corporate attorney to carefully draft your business contracts.

Contact San Diego Corporate Law Today

If you would like more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard can be reached at (858) 483-9200 or via email. Mr. Leonard’s law practice is focused on business, transactional, and corporate matters, and he proudly provides legal services to business owners in San Diego and the surrounding communities. Mr. Leonard has been named a “Rising Star” four years running by SuperLawyers.com and “Best of the Bar” by the San Diego Business Journal.

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