Acceptance sent through email; is the postal rule applicable?
| Autor | Delphine Defossez |
| Cargo | Delphine obtained two master's degrees in law, one in Comparative International and European Law from the European University Institute (EUI), Florence, Italy, the other in International Commercial and Maritime Law from Swansea University, United Kingdom. Her Bachelor studies were in European Law at the University of Maastricht, The Netherlands... |
| Páginas | 23-46 |
Acceptance sent through email; is the postal rule applicable? (p. 23-46) 23
DEFOSSEZ, D. Acceptance sent through email; is the postal r ule applicable? Law, State and
Telecommunications Review, Brasilia, v. 11, no. 1, p. 23-46, May 2019.
DOI: https://doi.org/10.26512/lstr.v11i1.24847
Acceptance sent through email; is the postal rule applicable?
Submitted
: 20/06/201 8
Delphine Defossez*
Revised
: 05/07/201 8
Accepted
: 15/01/201 9
Abstract
Purpose – This paper focuses on the application of the postal rule to email, due
to the controversy surrounding the ap plication of the “instantaneous” test to
emails.
Methodology/approach/design – This article analyses standards and literature
on the formation of contract under English law.
Findings – Although the postal rule is an invention of its time, this rule could still
play a role regarding emails. Indeed, due to the d ifficulties in applying the
“instantaneous” test to emails, emails would still be subject to the po stal rule. Of
course, the postal rule in its current form is no more fitting the reality. However,
the benefits that such rule provides should not be lost, instead a new rule could be
drafted based on the postal rule.
Practical implications – This article discusses the possible improvements to the
already existing framework.
Originality/value – This paper analyses the use of the postal rule to electronic
contracts in the UK, a topic that is not much researc hed but could have great
importance when doing electronic business.
Keywords: Postal rule, emails, contract law, acceptance, English law.
Introduction
A central requisite to the formation of a contract is necessity for an offer
and acceptance. The general rule stipulates that acceptance must be
communicated and received by the offeror. However, the postal rule is an
exception to this general rule, as held in (Brinkibon Ltd v Staha g Stahl und
Stahlwarenhandelsgesellschaft mbH, 1983). A contract is deemed to be formed
when the letter of acceptance is posted according to (Adams v Lindsell, 1818).
*
Delphine obtained two master’s d egrees in law, one i n Compar ative Interna tional and
European Law from the European University Institute (EUI), Florence, Italy, the other in
International Commercial and Ma ritime Law from Sw ansea University, Unit ed Kingdom.
Her B achelor studies were in Eur opean Law at the Universi ty of Maas tricht, The
Netherlands, in whic h she also was selected for a resear ched based programme, Marble
program, under the supervision of the Dea n of the l aw faculty. E-ma il:
d.defossez91@gmail.com.
24
Acceptance sent through email; is the postal rule applicable? (p. 23-46)
DEFOSSEZ, D. Acceptance sent through email; is the postal rule applicable? Law, State and
Telecommunications Review, Brasilia, v. 11, no. 1, p. 23-46, May 2019.
DOI: https://doi.org/10.26512/lstr.v11i1.24847
This means that an of fer can no longer b e revoked once the acceptance has been
posted (Re Imperial Land Co of Marseilles (Harris’ case), 1872), and it is
generally irrelevant t hat it never arrives, or arrives late (Household Fire and
Accident Insurance Co v Grant, 1874).
The postal rule is an invention of its time, when the main and quickest form
of business co mmunication was through the post. However, it is a matter of
controversy, whether the postal rule should be applied to e-mail and similarly
modern methods of communication. Surely so, when the postal rule that once was
very useful nowadays is rarely invoked. The controversy stems fro m the
difficulties to apply the “instantaneous” test to emails. The “instantaneous” test
derives fro m t he telex cases that were regarded as instantaneous and therefore
were not subject to the postal rule.1 There is, however, no agreement as to any
such classification of e-mail (Chwee Kin Keong and Others v Digilandmall.com
Pte Ltd, 2004; Hill, 2001). T he European legislator also avoids classifying email
in either ‘instantaneous’ or ‘non-instantaneous’ as the Electronic Commerce
Directive does not extend to email (Murray, 2005).
The question of the extensio n of the postal rule to e-mail is of crucial
importance and need more consideration as it determines whether acceptance was
given and is valid or not. Economic efficiency can be put in jeopardise if the postal
rule applies to acceptance send through e-mails. Especiall y because a customer
buying items online will receive a confir mation of order, but the acceptance is
executed by the dispatch of the goods themselves. A rule applicable to acceptance
through emails is of crucial importance as otherwise, the applicable rule will be
obsolete for the technology it regulates.
The revocation is also a problem. Indeed, if the postal rule applies to e-
mail, it means that similar revocation issues will exist, as normally the offeror can
no longer revoke his offer once the acceptance has been posted. However, if the
revocation arrives just when the acceptance was sent t hrough e-mail, then is it a
valid revocation? To complicate the matter, under Article 16(2) of the United
Nations Convention on International Sale of Goods (CISG), an offer cannot be
revoked once the offeree has dispatched an acceptance, although the acceptance
will not be effective until received by the offeror.
The application of the postal rule to such newer methods of communication
and even to the post itself might no longer be justified. With the progress of
electronic methods, the dispatch and receipt of a message tend to coincide. As a
result, any law that dealt with the delay between the two, such as the postal rule,
seems to obsolete. However, abandoning such rule altogether might neither be the
1
Entor es Ltd v Miles F ar Ea st Cor poration [1955] 2 QB 327; Bri nkibon v Stahag Stahl
und Stahlwa renhandels GmbH [1983] 2 AC 34; David Baxter Edward Thomas and Peter
Sandford Ga nder v BPE Solicitor s (a firm) [2010] E WHC 306 (Ch) at 86.
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