Imagine a scenario where you click send to an email and in so doing create a legally enforceable offer to sell your personal airplane. Sound like an email phishing scam? Think again. As digital communication technology continues to rapidly evolve, so do the digital communication pitfalls an aircraft owner may encounter.
Today most, if not all, aircraft- and aviation-related transactions involve some form of digital communication. Let’s review the general facts of a recent case that involved the sale of an aircraft where the parties negotiated the sale via email and text messages. The aircraft seller had published an online advertisement for his aircraft. Based on that advertisement, the buyer emailed the seller to inquire about the sales price. The seller responded with the following email:
“I discussed it with [my spouse], who wanted me to go no lower than $45K. After more discussion, we agreed to go some lower, $42K, that would be the lowest I could go and would be taking a pretty sizable loss…Your thoughts?”
Using arguably good email etiquette, the seller typed his name at the conclusion of the above email. Shortly thereafter, the prospective buyer responded to the seller’s email stating, “I accept your price of $42K.”
So the question is, deal or no deal? A contract in its most basic form requires an offer, an acceptance and valuable consideration. In the above email exchange we have a reluctant but voluntary offer and an unequivocal mirror acceptance. The buyer quickly followed up his acceptance with an email inquiring what the parties must do to finalize the deal. The seller responds via email stating, “A deposit will keep it yours.” A deposit check was sent via overnight courier the following day.
Several days later, regretting the benefit of his bargain, the seller sent a text message to the buyer informing him that he wasn’t going to cash the deposit check and wasn’t going to sell the aircraft to this buyer. The seller stated that he had since discovered “the true current value of my plane” and couldn’t now part ways with it for any less than $61,000.
Most jurisdictions have adopted some form of the Statute of Frauds, which generally requires that contracts for the sale of goods be in writing and signed. In the above example, the seller unsuccessfully defended his repudiation on the grounds that there was no “formal” written contract with ink signatures. There are a growing number of jurisdictions that would likely find that a legally binding agreement existed between the parties that satisfied the writing and signature requirement. The simple act of typing one’s name at the end of an email has been held to satisfy the signature requirement.
The clear takeaway from this case is that, regardless of the platform, any digitally communicated words of offer or acceptance should be treated as if the message has the potential to be legally binding upon the author.
