Under the Electronic Transactions (Queensland) Act 2001 (ETA) there is a need for prior consent to send contract documentation by electronic means. If a contract is to be exchanged between parties by fax or email then consent must first be obtained from the recipient receiving the contract. It is not appropriate to have a clause (or special condition) inserted into a contract as the ETA states the recipient must have already given consent at the time the information (contract) was received by them.
The Act does allow for conduct inferring consent but this has not been tested in court as yet and can be hard to prove. It is therefore better to obtain documented consent prior to forwarding the contract documentation to the other party.
This requirement can be answered by simply sending the contracting party or their solicitor an initial email requesting that they consent by return email to accept the documentation and all further communications in regard to the contract by email or fax.
Example:
Please confirm by return email/fax that you agree to accept all contract documentation [on your client’s behalf] in relation to your proposed contract by electronic means. We are required to gain your consent prior to forwarding the contract documentation under the Electronic Transactions (Queensland) Act 2001.
Further, it is important that a condition (or special condition) be inserted into the contract to provide for the signing of the contract by counterpart via email or fax and that the counterparts will be binding on the parties. Such a special condition will only be effective if the above email/fax has been sent and return by the recipient or their solicitor.
Joe Kafrouni, Legal Practitioner Director, Kafrouni Lawyers
Disclaimer
The information provided by Kafrouni Lawyers is intended to provide general information and is not legal advice or a substitute for it. Buyers and sellers of businesses should always consult their own legal advisors to discuss their particular circumstances. Kafrouni Lawyers makes no warranties or representations regarding the information and exclude any liability which may arise as a result of the use of this information. This information is the copyright of Kafrouni Lawyers.
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