Instant Messenger Conversation Modifies Contract; Signed With 'Awesome'

from the awesome-indeed dept

Many people don't quite realize that almost any kind of "agreement" can be seen as an enforceable contract in the eyes of the courts. While some people think a contract has to involve a full written document and signatures, that's often not true at all. Take, for example, a case involving affiliate sales of e-cigarettes, in which a written contract was deemed to be modified by a simple instant messenger conversation. The affiliate company, CX Digital, wanted to remove the contractual limit of 200 referrals per day for sales of Smoking Everywhere's e-cigs, and the following IM conversation ensued:

[CX] (2:50:08 PM): We can do 2000 orders/day by Friday if I have your blessing

[CX] (2:52:13 PM): those 2000 leads are going to be generated by our best affiliate and he's legit

[Smoking Everywhere]: is available (3:42:42): I am away from my computer right now

[CX] (4:07:57 PM): And I want the AOR when we make your offer #1 on the network

[Smoking Everywhere] (4:43:09 PM): NO LIMIT

[CX] (4:43:21 PM): awesome!

Smoking Everywhere then tried to bail out on paying CX the affiliate fees owed, and claimed (among other things) that this didn't represent an actual modification of the contract which had the 200 per day limit stated. The court didn't buy it, noting that this is a perfectly fine example of an offer, counter-offer and acceptance, all encapsulated in instant messenger:

After the discussion between Touris and Soltani about switching the URLs, Soltani sends an offer to Touris: "We can do 2000 orders/day by Friday if I have your blessing . . . . [a]nd I want the AOR when we make your offer number one on the network." ... Touris responds, "NO LIMIT." ... CX Digital argues that Touris accepted Soltani's offer by saying "NO LIMIT." The Court agrees a contract was formed but clarifies that Touris's response acted as a rejection and counter-offer that Soltani accepted by then replying "awesome!"

[....] Here, Touris's response of "NO LIMIT" varies from the two specific terms Soltani offered and so acts as a counter-offer. Soltani proposed CX Digital provide 2,000 Sales per day and that CX Digital be the AOR or agent of record..., a term of art meaning the exclusive provider of affiliate advertising on the advertising campaign.... Touris makes a simple counter-offer that there be no limit on the number of Sales per day that CX Digital's affiliates may generate ... and makes no mention of the AOR term. Soltani enthusiastically accepts the counter-offer by writing, "awesome!" ... and by beginning to perform immediately by increasing the volume of Sales

So, for those of you interested in contract law, let this be a simple lesson in what it takes to form a contract... and, yes, it is kind of awesome.

Filed Under: contract, instant messenger

Now Tell Us What You Really Think... But Do It Over Instant Messenger...

from the in-keyboard-veritas dept

This probably won't come as a surprise to anyone, but saying potentially embarrassing stuff in writing is a hell of a lot easier than saying it in person when you have to watch how people react. That's why people can sometimes be such jerks online. But, it also means that for kids these days it's much easier to have potentially embarrassing conversations, such as asking someone out or dumping them. They just do it all online and don't have to deal with the immediate reactions. Some people, of course, find this horrifying, that people may never learn how to talk directly to others about potentially uncomfortable subjects, while others (mostly those who are uncomfortable talking to others about such things) find it to be quite liberating. Like most things, it seems like the type of thing that is useful in moderation -- as long as people recognize the signal that it sends out as well. For example, when it comes to dating, someone who is attracted to more confident people will actually find it a turnoff to be asked out this way -- meaning that as liberating as it is, it may actually be hurting some people's chances to become too reliant on hiding behind the keyboard. In the end, though, it really is just a tool -- and as people learn to use it appropriately it's hard to see how that's a problem.

Filed Under: hiding, honesty, instant messenger