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

James R. Wakefield, P.C.'s Construction Law Legal Blogs

Licensed for 36 years

Attorney in Newport Beach, CA

James R. Wakefield, P.C.

Free initial consultation, Credit cards accepted, Fixed hourly rates

Serving Newport Beach, CA

  • Serving Newport Beach, CA

  • Free initial consultation, Credit cards accepted, Fixed hourly rates

Senior Partner at firm Cummins & White, LLP

Serving Newport Beach, CA

Free initial consultation, Credit cards accepted, Fixed hourly rates

Awards AV Preeminent

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.

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