Contracts which expressly permit the giving of notices by email typically deem the notice to have been received at:
(a) the time the email is sent by the sender;
(b) a specific period after the time it is sent by the sender; or
(c) the time shown on a "delivery receipt" received by the sender.
There are potential issues with all of these methods and no easy solutions.
For option
(a), any delay between when the email is sent and when it is received is not accounted for, so what happens when the email is not received the instant it is sent? For option
(b), what if the email is received after the specified period or not received at all? In both cases, it would be unfair on the recipient to deem the email to have been received before the recipient could have received it.
While option
(c) overcomes these issues, it creates a problem for the sender, as recipients can set up their email systems so that delivery receipts are never issued, even if the sender requests one. How then does the sender prove the time of receipt?
Electronic Transactions Act 1999 (Cth) – risks
This Act (and its state counterparts) provides some rules for determining when emails are taken to have been received. It says that, unless the parties agree otherwise:
- if the email address is set out in the contract, the time of receipt is when the email enters the recipient's mail server; and
- if the contract does not designate an email address, the time of receipt is when it comes to the attention of the recipient.
But do these rules adequately protect the interests of both senders and recipients of emailed notices? Consider the following:
- What if the sender gets a response from the recipient's email server saying that the email could not be delivered because it was too many megabytes?
- What if the sender gets an "out of office" response?
- What if the recipient has left the organisation?
In each case, the email has entered the recipient's mail server, but it has not, or may not have, been received by the recipient. If the email address was set out in the contract, should the recipient be deemed to have received the email in each case? If so, how does the sender prove the time of receipt in the third scenario if it doesn't receive a "delivery receipt" from the recipient's server?