Cell Phones, Email & Emojis in Contracts: A Dangerous Combination!

James R. Wakefield

James R. Wakefield

The old saying is that “an ounce of prevention is worth a pound of cure.” That is true in most endeavors of life. It is rarely as easy to fix a problem, as it is to avoid it. And this is definitely true in construction. In the world of construction contracts, ensuring that contracts do not contain language that will harm you later is always less expensive than dealing with the damage that could occur if you failed to read the contract before you signed. Most contractors are aware of this and carefully study the contracts they sign or have a professional review them before signing.

But what many people do not realize is that a contract between two parties is often more than the document called the “contract” or “subcontract” that they sign. And, a careful reading of that contract will not always prevent the inclusion of language that is harmful to them later. That is because after a contract is signed, there is usually communication between the parties to the contract concerning its interpretation or its performance. In this day and age, those communications are inevitably by email. If the parties agree or seem to agree in their written email communication on something that is contrary to the terms in the contract they signed, that written communication will “control.” That is the written communication between the parties will be given effect rather than the written contract they signed earlier. [CA Civil Code §1651]

That is fine so long as both parties understood the communication between them to mean the same thing. But unfortunately sometimes in our haste we do not always make clear in our writings what our intent is. The message that one person intended to convey might be very different than the message the recipient understood. This is especially so when we communicate via email with the ubiquitous “smart” phone. Between “auto-correct” and Emoji, we often say things that are entirely different than we intended. And that can result in a contract being changed to the detriment of the person sending the email.

Ultimately, it is always a judge’s duty to determine what the parties agreed to do in their contract. The judge is required to follow certain rules of contract interpretation. One of those rules is that if the language is ambiguous (susceptible to more than one meaning), then the judge must interpret the language most strongly against the party who caused the uncertainty to exist. [CA Civil Code §1654].

If a person sending an email fails to proof it carefully before sending it, the email might not say what was intended. That is especially true with Emoji. Many (perhaps most) people believe they can better express themselves by adding Emoji to an email. That might be true when sending a note to a friend or loved one. But their efforts to make an email more personal when discussing contract performance or interpretation might result in a judge giving the communication a much different interpretation than was intended. For example, one person’s smiling face might be interpreted by another person as a smirk.

Our advice? When communicating about the interpretation or performance of a contract, do not use your phone. If possible, sit down in front of a computer and carefully write your thoughts. It is too easy to make a mistake when typing on a phone with auto-correct. If you must use your phone, carefully proof the email before sending and never use non-verbal Emojis. Make sure the email clearly says what you intended it to say.

More often than not, if a business dispute goes to trial, the outcome will turn on the contents of one particular email. I have lost count of how many times a witness has testified, “Yes, that was my email address, but no, I do not recall sending that email and I cannot imagine why I would have.”

Well, perhaps the person would not have sent it if he or she had proofed it before hitting the send button.

If you have questions, feel free to contact me at jwakefield@cwlawyers.com or call me at (949) 852-1800.