March 6, 2018

Notice Provisions: To Email or Not to Email?

This Norton Rose Fulbright blog wrestles with the question of whether the notice provisions contained in M&A agreements should provide for notice by email – and how to treat notices received by email when the agreement doesn’t expressly provide for it.  This excerpt addresses the latter scenario:

In the second scenario – where a party sends a notice via email, despite the notice provision having  stipulated otherwise – the question of whether an email will constitute “good notice” depends on the interpretation of the notice provision as permissive or mandatory. As a general rule, notice clauses in a contract must be strictly complied with. Therefore, if the clause uses language such as “must” or “shall”, delivery by email will be ineffective notice, even if the email was received.

On the flip side, courts will permit email notice if the clause is permissive rather than mandatory. The notice provision will likely be viewed as permissive where it does not prohibit email, using language such as “may”. In the case of a “permissive” notice clause, the ultimate test will be whether email delivery is “no less advantageous” to the recipient than the method specified in the agreement.

John Jenkins