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Britain's 400 Years of Cyber Law 225

Posted by Zonk from the ye-olde-email dept.
corbettw writes "There's a news piece in The Register this morning about a British high court ruling about email signatures, and whether they constitute binding contracts. Apparently, the 1677 Statute of Frauds dictates what constitutes a contract, so an email with a disclaimer in the sig could qualify under the language of the statute. Since the statute predates the Constitution of the U.S., a clever lawyer could argue it applies here equally. Maybe there's some truth to the Internet joke 'take off every sig for great justice!'"
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Britain's 400 Years of Cyber Law More

Britain's 400 Years of Cyber Law

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  • I am not a lawyer... (Score:4, Interesting)

    by endrue ( 927487 ) on Thursday April 13, 2006 @12:32PM (#15122005)
    ... so does this mean that laws made in Britain prior to the US Constitution are binding now in the USA? I think I am confused and I have not RTA so maybe someone could enlighten me.

    - Andrew

    • Re:I am not a lawyer... (Score:5, Informative)

      by nomadic ( 141991 ) <nomadicworld@@@gmail...com> on Thursday April 13, 2006 @12:38PM (#15122061) Homepage
      There's a school of thought (Justice Scalia seems to be the most prominent member of it) that says American common law includes British common prior to 1792 (I think that's the year). It probably won't matter much here, most contract law is statutory and is done under the Uniform Commercial Code (or whatever variant of it that a state has adopted), which has specific rules regarding what constitutes a contract.
      • There's a school of thought (Justice Scalia seems to be the most prominent member of it) that says American common law includes British common prior to 1792 (I think that's the year). It probably won't matter much here, most contract law is statutory and is done under the Uniform Commercial Code (or whatever variant of it that a state has adopted), which has specific rules regarding what constitutes a contract.

        W. T. F.

        I'm pretty sure that's exactly what what the Constitution's authors would have wanted. Ri

        • Re:I am not a lawyer... (Score:5, Insightful)

          by Alomex ( 148003 ) on Thursday April 13, 2006 @01:44PM (#15122674) Homepage
          That is exactly what the constitution authors wanted. The consitution was written in English, using the English legal tradition and standard English meanings. When they wrote the word "judge" the meant a judge as understood in the british system. When they wrote the word trial, they meant a trial as understood in the british system.

          In other words, every unstated assumption is to be resolved using the customs, practices and semantics of the day, which were, lo-and-behold the British customs. Particularly those rights that are not explicitly stated, but not to be construed as non-existent, as per the first amendment.
          • The consitution was written in English, using the English legal tradition and standard English meanings.

            English language != English law

            When they wrote the word "judge" the meant a judge as understood in the british system.

            The American legal system is spelled out sufficiently without invoking British law. 'Judge' is a noun, and the concept goes back well before the British legal system. One need not invoke British law to know what a judge is, either.

            When they wrote the word trial, they meant a trial

            • English language != English law

              This is a red herring. The portions of the English language that described the legal system at the time derive their meaning from English law. Judge, property right, crime, libel, etc.

              The American legal system is spelled out sufficiently without invoking British law.

              Today, after 230 years of case law, that is mostly the case, back then it was the complete opposite.

              Or one could stop trying to read tea leaves and actually interpret what's written down, which was quite clearly Je
              • Today, after 230 years of case law, that is mostly the case, back then it was the complete opposite.

                OK, if case law is the argument, then the case is easy to make: would one rely on law from the 1600s as a relevant comparison? Doubtful. And this isn't a matter of case law, this is a matter of an actual *statute* which does *not* exist in American law.

                Put it this way - show me the last time someone successfully used a British statute from the 17th century as valid case law in America.

                • I'm not sure you're getting the concept of 'precedent' correctly. The idea is that you use the most recent available precedent that deals with a similar situation; obviously that means that we don't have to go back to the 1750s very much anymore. If you were arguing something in your local civil or criminal court and the best case you could find to support your line of reasoning was from pre-revolutionary English common law, you're probably going to get laughed at.

                  However, just because it doesn't happen oft

                • Re:I am not a lawyer... (Score:3, Informative)

                  by Alomex ( 148003 )
                  Put it this way - show me the last time someone successfully used a British statute from the 17th century as valid case law in America.

                  Easy, and very relevant to our subject: every contract signed before the declaration of independence was still considered valid the day after. How was that contract interpreted? under the British statute even after independence and the writing of the constitution.

                  Hence the legal principle is there: in principle an old British statute can still have legal weight today.

                  Of cour
            • If memory serves me correctly, Michigan's constitution specificaly recognises British Common Law in the order of presidence, so if there is nothing in the state's law's and contitution, the federal laws and constituion, Magna Carta, etc., British Common law applies.

        • I'm pretty sure that's exactly what what the Constitution's authors would have wanted. Right. Talk about bench legislation, that's absolutely ridiculous.

          Actually the Founding Fathers considered completely scrapping the British legal system and starting over from scratch....and decided that this was going a bit too far and would take way too much work, that the existing common law legal system that the States had been using worked not just fine but very well, and so incorporated the British common law syst

          • Re:I am not a lawyer... (Score:3, Informative)

            by dajak ( 662256 )
            And so we kept the British legal traditions in this country, except in Louisiana, where they use French legal traditions at the State level.

            New York, the most important economic area of the young republic, based its legal traditions on the Roman-Dutch law of the Dutch republic. The influence of the Republic of the United Netherlands on American institutions is quite obvious, if only because of the federal structure and explicit self-delegation of legislative power in an explicit constitution. The very notio

        • It's exactly what they wanted. (Score:5, Informative)

          by Kadin2048 ( 468275 ) <slashdot.kadin@xox y . net> on Thursday April 13, 2006 @02:28PM (#15123069) Homepage Journal
          I think you need to reread your history. Many of the founders of this country had a great deal of respect for the English legal system: in theory at least. It was a particular government (that of King George III) that they were less-than-fond of. A great number of the principles enshrined in both the Declaration of Independence and later in the Constitution trace their lineage back to Britain (in particular to the Magna Carta, which the Founders would have been familiar with).

          The American court system in particular was essentially of British design, and most of the early judges and lawyers had read the a lot of British common law to pass the Bar. (At lower levels, the pre- and post-revolutionary court systems probably didn't change that much.) It was very common for aspiring lawyers to read Blackstone's as part of their studies until fairly recently--in my opinion, the lack of this today is really too bad. Recall also, that many of this country's Founders were lawyers who had read the Common Law and were used to thinking in its terms: Thomas Jefferson, Samuel Adams, John Dickinson, Oliver Ellsworth, Patrick Henry, and George Mason are just a few; I'm probably forgetting a lot of others. These were men whose concepts of fairness and equality, perhaps of liberty in general, owe at least some credit to their understanding of law.

          The everyday jurisprudential theories at work in the courts of England and post-revolutionary America really were about the same, on issues like torts, the definition of crime, etc. Over time there has been divergence on some issues, but there are still a lot of similarities. (More-so than between either the British or American system and a totally different theoretical foundation, like the Roman/Napoleonic Code that is the basis for the French and some other Continental systems.)

          Law changes and evolves over time; it's not something that you can easily just create anew out of whole cloth. The American legal system was built on the conceptual foundations provided by Common Law, and there is nothing wrong with referring to it if precedent is needed and nothing more recent can be found. This doesn't happen often (after all, we have 200+ years of our own precedent to go through now), but occasionally some very old Common Law case can be elucidating.

          This is not to say that a law is somehow automatically valid here, just because it was present in Britain prior to 1792 (that's an entirely separate branch of government anyway), or even that a court ruling there has an immediate and automatic effect here. It just means that in making arguments and looking for precedent, British case law prior to 1792 is fair game.
          • The American court system in particular was essentially of British design, and most of the early judges and lawyers had read the a lot of British common law to pass the Bar.
            You're probably not wrong, except that, like far too many people, you're conflating "English" and "British", which as we're dealing with distinct and very different legal systems north and south of the Tweed is particularly heinous.

      • Re:I am not a lawyer... (Score:5, Informative)

        by TubeSteak ( 669689 ) on Thursday April 13, 2006 @01:33PM (#15122591) Journal
        I'm pretty sure it's not just a "school of thought"

        Go read the WikiPedia article: http://en.wikipedia.org/wiki/Law_of_the_United_Sta tes#American_common_law [wikipedia.org]

        Essentially, every country that had been colonized at some point by Britain uses British common law. In the case of the U.S., those precedents are overridden by any subsequently passed laws, but other than that BCL still stands.
        • Exactly. All these idiots running around claiming the sky is falling because the US is using foreign precedents are trying to start a fight where there is none.

          Any important laws have long since been superseded by the Constitution, Amendments, etc. In cases where they haven't, it's probably something old and obscure, like regulations on badger farming or some crap.

          On top of that, what exactly is wrong with considering another country's laws, particularly on new stuff? If some other country has alread

        • Essentially, every country that had been colonized at some point by Britain uses British common law.

          More than that, some (but dwindling) former colonies still have the British "Law Lords" as their judiciary of last resort (via either the House of Lords (for Scotland at least) or the Privy Council).

      • Re:I AM a lawyer... (Score:2, Informative)

        by Anonymous Coward
        The Statute of Frauds is most definately the law in the US. It is taught in every law school in the U.S. in contracts class, and it is tested on the Bar exam (at least in California).

        Much of our law comes from British common law. It would not take a very clever attorney to get a court to consider English common law. It is done all the time where there is either no precident in the U.S., or it is such a long established rule of law (like the SOF), that it is taken as a fundamental underpinning of our system.
      • Yes, but rules of statutory construction are predominately common law, with canons that stretch back before the U.S. Constitution.

        As another poster has said, the Constitution did not abolish common law. It stands as more of a super statute (because it should not be readily modified by an act of Congress). So, it molded U.S. common law that passes down from the British. If you're talking about a "school of thought," though, it might be the one that belives that precedent should count for something and that j
      • American common law includes British common prior to 1792

        And further, don't the US courts still take into consideration rulings involving such "common" british common law, even where it happens way after 1792?

        I can't find it back right now, but I thought there was a case (involving treason I think) ruled on in the late 1800s in an Irish court (still in union with England back then) which set precedent that is recognised in the USA too. Wish I could remember the name...
    • I'm not a lawyer either, but from what I understand, any rulings made in British courts prior to US independence can be used as legal precedents if they're not directly contradicted by either later rulings in the US or revisions to US laws.
    • I think you're doing fine and it's the submitter that was confused.

    • The US inherited the British constitution. The law being talked about was in the British constition before the US inherited that constition, so it's in the US constition too.

      Now, the thing being talked about here is, if a British judge made any conclusions in relation to email about that law in their constitution (which is in the US constition too), does that also mean that the same conclusions could be assumed for the US ?

      • Actually, thw Unitee Kingdom does not have a set, written constitution like the United States, India, France, and so on. According to the wikipedia, the British Constitution [wikipedia.org] is an "unwritten consitution." That certainly is not to claim that constituional law in the UK is pure chaos. To quote the article:

        The lack of a central written constitutional document explaining the fundamental principles of the state and relationship between its institutions and between the people leads some constitutionalists to

      • The US inherited the British constitution.

        This is, of course, utter nonsense.

      • The US inherited the British constitution.

        Uhm, there is no written British Constitution.
        • Uhm, there is no written British Constitution.

          Wrong. There is no single document that describes a British constitution, rather the constitution of British law is its jurisprudence in aggregate - much of it writ in statute and in judgement.
      • does that also mean that the same conclusions could be assumed for the US ?
        might, might not, that's what lawyers are for; however since a more rational explaination of the decision is,

        Article in The Register about a recent High Court judgment on the application of the Statute of Frauds and Perjuries 1677 to e-mail messages. In short, the sender's name or initials as a signature in the body of the e-mail is a valid signature, but names or addresses that appear only in the headers do not count. The ar

    • Re:I am not a lawyer... (Score:5, Informative)

      by AKAImBatman ( 238306 ) * <akaimbatman@gmaYEATSil.com minus poet> on Thursday April 13, 2006 @12:40PM (#15122088) Homepage Journal
      One of the key factors in deciding a case is the precedent set by previous court cases. That is, how other judges decided in a particular situation. When a US judge comes across a case that has no precedent in the US system, he'll sometimes look to the British system (the foundation for the American system) for precedent. If the precedent for that system agrees with the US laws, it can have a major impact on the judge's decision.

      http://en.wikipedia.org/wiki/Legal_precedent [wikipedia.org]
      • They also routinely look at Canadian and Australian cases, to understand how case law has been interpreted in similar jurisdictions. Of course this only applies when the underlying statutes are similar in nature. They are not construed as precedent setting, but just like the parent says, it can have a major impact on the judge's decision.
    • so does this mean that laws made in Britain prior to the US Constitution are binding now in the USA?

      No. But, British common law from before the Revolution sometimes does.

      American common law originates in Britain (the slate wasn't wiped clean at the time of the Revolution) but they did go their seperate ways at that point. So things British judges said before 1776 are part of American common law, and are possibly binding if no newer American law has replaced it.

      In summary, this ruling is not binding in the U
    • In Wisconsin's State v. Picotte [state.wi.us] (2003) an individual caused severe injuries to another, and that person died about two years later from those injuries. He was initially convicted with some type of assault charge, but after the guy died, they convicted him of a murder charge.

      English common law, in the 13th century created a concept called the Year and a Day Rule [wikipedia.org] in which a person is not culpable for a person's death due to injuries they caused if the person dies 366 days after the injuries were caused.

      The Wi
    • You can not be charged with breaking common law. It must be law in America in the US Code, state or local laws.

      http://www.jimloy.com/issues/unwrittn.htm [jimloy.com]

      Common law: England has no formal constitution. Their "constitution" is the accumulation of court cases down through history. Their law of the land is what judges say, in addition to the laws made by Parliament. The U.S.A. has inherited some of this "common law." And the courts have added much more. But the Court has decided that there are no common law crim

  • Confusion again (Score:5, Insightful)

    by slavemowgli ( 585321 ) on Thursday April 13, 2006 @12:33PM (#15122015) Homepage
    Editors, RTFA. This is not about email signatures in the sense of the things people like to put after the "-- " at the end of their emails to add a personal touch; it's about regular signatures (signing your name), and it's about the fact that the LACK of a name or signature in an email means that an email CANNOT be a valid "written offer".

    The only thing this means is that if you include your name in your signature (the email signature again, i.e., the part after the "-- "), whatever you wrote in your email can be treated the same way as something you wrote in a regular letter that you signed with your name.

    But that's neither surprising nor worrying - quite the opposite. The implicit statement in the story summary that the disclaimers some companies like to put into emails could somehow constitute a valid contract is a big, fat piece of Slash-FUD.

    Speaking of which, I propose the term "Slash-FUD" for intentional FUD in and intentionally misleading summaries and headlines of Slashdot stories - the problem seems to have grown so large in recent years that I think it deserves a special name. Death to Slash-FUD! Let that be our battle cry.

    • Re:Confusion again (Score:5, Insightful)

      by Bogtha ( 906264 ) on Thursday April 13, 2006 @12:52PM (#15122201)

      Exactly. It seems Zonk either didn't actually read the article before approving it, or read it but didn't understand one word of it.

      Pretend for a second that this comment was an email, that I was making an offer of some sort, and Bogtha was my real name. The fact that 'by Bogtha' above my comment does not mean that I've "signed" the "contract". The fact that 'Bogtha' appears at the bottom, as part of the comment and not part of the meta-data, means that I've "signed" the "contract".

      In essence, a British law defines the rules by which you can consider a document to be signed. A judge looked at a case involving an email, and decided that according to that law, a From header doesn't count, but a name at the bottom does.

      It's really not that interesting and bears little resemblance to what is described in the summary. You can read the original law here [tiersma.com].

      • Ugh- And not every document with a signature is a contract...
        Mutual assent, consideration, competant parties (depending on the type of contract this can include minors, drunks, the insane etc., but the contracts can still be ratified...) etc etc etc...
      • It's really just a common sense judgement, whether something is a signature or not: did the person mean it to act as a signature? That's the whole point of the decision.
      • The fact that 'Bogtha' appears at the bottom, as part of the comment and not part of the meta-data, means that I've "signed" the "contract".

        Err... but I don't view signatures.

        "Disable Sigs - Strip sig quotes from comments" is a Slashdot user setting.

        In short, the only way for Slashdot to strip sigs is because they are flagged as special meta-data, not as part of the comment.

        By your own argument, Slashdot sigs cannot count as "signing" the "contract" - it has to be written into the body. Email works differe
      • "--

        Bogtha Bogtha Bogtha"

        Yes sir, we confirm the order of Zonkers will be shipping. Seeing your triple emphasis in your sig, we will ship three cartons by overnight delivery. Billing will be by separate message.

        Thank you for your business,

        Miss Pers Eve Understanding,

        Contract Sales

    • I basically agree with your comment. However, the article does have to do with email disclaimers. This ruling, IMHO, implies that no content of an email message may be legally binding if it doesn't include the full names of the involved parties.

      I guess one might hypothesize that this means that no disclaimer signature in an email can be legally binding, as one of the involved party (the reader) should at least affix their signature at the bottom of it to certify acceptance of the conditions. That's pure s

    • The implicit statement in the story summary that the disclaimers some companies like to put into emails could somehow constitute a valid contract is a big, fat piece of Slash-FUD

      It seems the summary mutated to "email with disclaimer" from "signature and disclaimer" in TFA and "disclaimer" only (in Rekon title) and "name or initials" in Rekon blog ariticle. While it may be slasfud, I guess the confusion is somewhat understandable since all the articles speak of it differently. So does a disclaimer alone

    • I am an attorney, but this is not legal advice. Find a lawyer licensed in your jursidction for that!

      Neither the British Statute of Frauds, nor that of any US jurisdiction of which I am aware (or any non-US Common Law jurisdiction, for that matter) requires a signature. A *writing* is required from the person against whom the contract is to be enforced.

      The purpose of the statute was to deal with some then-common frauds. Particularly, perjured testimony as to the existenc eof an oral contract to sell land.

  • Ahem. (Score:5, Interesting)

    by Noryungi ( 70322 ) on Thursday April 13, 2006 @12:34PM (#15122019) Homepage Journal
    On the other hand, I think email is not admissible as 'proof' in a court of law, since it is too easy to forge and email and/or muck up the sender information. So, even if an email includes a clever sig and/or statement to the effect that it is a binding contract between the sender and the recipient, it is highly possible it would be thrown out of court, as it does not constitute admissible evidence.

    At least, I am almost certain that's the case in my area... Napoleonic code and all that. YMMV, IANAL, etc...
    • Email is quite frequently used in court cases to establish intent. intent. [smh.com.au] Hell, if it wasn't useful, then why is this story important? [baltimorechronicle.com]

      Now I'm not a lawyer, but I do know that emails ARE important.

      Feloneous
    • In Usenet/early-web days someone asked a big shot expert lawyer on this, and the comment was that an email with proper headings would be definitely be accepted as evidence towards the fact that a contract existed, just like a partially water-damaged paper contract would.

      It would then be up to the court to decide if the evidence considered altogether (such as a sequence of emails leading up to the contract) constituted proof of contract. Certainly a single email out of the blue saying "I want a million widge

      • Re:Ahem. (Score:2)

        by hawk ( 1151 )
        I am a lawyer, but this is not legal advice. If you get legal advice on slashdot, go sign somehting by email.

        The big problem with email is the hearsay rule. Look at the path. *Every* one of those transitions is a "heard and said" which requires a hearsay exception (either an actual exception, or to fall outside the rule as "non hearsay").

        You told your computer, and then it said . . .

        Your ISP's first machine heard, and it said . . .

        [lots more]

        The recipient's ISP heard, and it said . . .

        The mail server hea
        • This is an honest question: would a document that is a photocopy of a photocopy be considered triple hearsay?

          • Re:Ahem. (Score:2)

            by hawk ( 1151 )
            The hearsay rule would apply to the original document. To use the photocopy in its place, the "best evidence" rule would apply: the copy can be used if and only if the original is unavailable (and even then, if there is fault on the part of the party trying to use it, it may not be allowed).

            hawk
    • In this case, the sender of the email admitted to sending it, so the legitimacy was never an issue.
    • On the other hand, I think email is not admissible as 'proof' in a court of law

      The only thing I can think of which is admissible as proof in a court is a confession. Just about everything is admissible as evidence, but the court will be very skeptical about all of it (including first-hand witness reports - people are lousy witnesses). When there isn't any proof, a jury decides based on whatever they want.

      All forms of uncertified mail are pretty worthless unless the other party admits to having written it, i

  • Statue of Frauds definately applies in the US (Score:2, Informative)

    by Anonymous Coward
    The statute of Frauds applies in the US for sure, as it was covered externisvely at my Uni business law class so many years ago. Wikipedia covers this pretty well:
    http://en.wikipedia.org/wiki/Statute_of_frauds [wikipedia.org]

  • Wrong, let me clarify. (Score:5, Informative)

    by Ckwop ( 707653 ) * on Thursday April 13, 2006 @12:36PM (#15122040) Homepage

    Since the statute predates the Constitution of the U.S., a clever lawyer could argue it applies here equally.

    The USA declared independence and is therefore independant of the British legal system. The same goes for Ireland too. do you think the 1801 Union Act still applies there because it predates their constitution? :P

    In the British legal system a contract is formed when the following are all true:

    1. There is an offer
    2. There is consideration of the offer - i.e. Goods or Services exchanged for money or other services.
    3. There is acceptance of the offer

    For example, if you exchange e-mails with your girlfriend and you promise to take your girlfriend her to the pictures if she buys you a pint tonight, and she does, then she can sue for breach of contract if you do not take her. Notice the agreement is independant of the medium it is formed in. If some new medium communications medium existed tomorrow, contract law still applies to it.

    Simon.

    • But it doesn't clearly state that if she doesn't buy you the pint after the flicks that it's a matter of sacrilege, not just civil law.
    • Do you think it would apply to telepathy?
    • The USA declared independence and is therefore independant of the British legal system. The same goes for Ireland too. do you think the 1801 Union Act still applies there because it predates their constitution? :P True enough. But ... In the British legal system a contract is formed when the following are all true: 1. There is an offer 2. There is consideration of the offer - i.e. Goods or Services exchanged for money or other services. 3. There is acceptance of the offer Wow. What an amaz
    • The USA declared independence and is therefore independant of the British legal system. The same goes for Ireland too. do you think the 1801 Union Act still applies there because it predates their constitution? :P

      Really? Then how come British common law is the foundation for Roe v. Wade?

      From http://en.wikipedia.org/wiki/Roe_v._Wade [wikipedia.org]:
      "Abortion

      The opinion of the Court, written by Justice Harry Blackmun, states that "the restrictive criminal abortion laws in effect in a majority of States today are of relativel

      • The USA declared independence and is therefore independant of the British legal system. The same goes for Ireland too. do you think the 1801 Union Act still applies there because it predates their constitution? :P

        Really? Then how come British common law is the foundation for Roe v. Wade?

        You answered your own question:

        Section VI of the opinion was devoted to an analysis of historical attitudes...

        British common law is quoted in Roe v. Wade just as an analysis of historical opinions not as binding law

    • The key word is 'acceptance'. How do I know you accepted the offer? It's a hard question -- if I get a signed letter, how do I know it's your signature? How do I know you're authorized to accept that contract? And so on.

      Under the UCC, a 'signature' is any tangible(?) mark indicating consent. It can be your legible signature in cursive. It can be your illegible signature in cursive. It can be an "X". It can be a crude drawing of Daffy Duck. It can be, in theory, an email where you say "I agree to thi
    • I am a lawyer, but this is not legal advice. If you need some, go pay for it.

      >The USA declared independence and is therefore independant of the British legal system.

      Independent of the system, sure, but as for the law: the Constitution *explicitly* adopts the Common Law. Until a change in US or state law occurred, wehther by statute or Common Law (court precedent), British common law remained the same.

      See (above?) for more on the Statute of Frauds, but precedents from other Common Law jurisdictions (pre
  • Those of you familiar with the Zardoz quote are in for a disappointment. Following this, I have changed my signature to be more compliant with UK law.

  • Really? (Score:2, Insightful)

    by Dread Pirate Skippy ( 963698 )
    Since the statute predates the Constitution of the U.S., a clever lawyer could argue it applies here equally.

    How could a clever lawyer argue that, exactly? Didn't we have a big war a couple hundred years ago so that English laws would no longer apply in America?

    • How could a clever lawyer argue that, exactly? Didn't we have a big war a couple hundred years ago so that English laws would no longer apply in America?

      No. You had a big war so that English rule (and taxation) would no longer apply in America.

      You did, in fact, keep the basis of British Common Law as a foundation of your legal system. And then built on it/superceded it over time.

      It's too annoying to build a whole legal code from scratch.

      Oddly enough, that's why the woman you're shacking up with (if you we

      • Oddly enough, that's why the woman you're shacking up with (if you were) is referred to as your common law wife -- because it was recognized under British Common Law.

        Not true. Such a thing wasn't the British common law, isn't the US common law, and the common law marriage rules in the US are quite different from what the common law marriage rule was in British law.

        1. Shacking up with someone (even for a long time) didn't cause them to become your wife in British common law and doesn't in the US.
        2. There's
    • ...the question is whether he can do so successfully. That is, whether the judge will rule in his favor.

      I don't think "common law" means at all the same thing as an explicit statute, where Congress has set down in writing what the rule is. In those cases, the court is bound to enforce the law as written, regardless of whether or not it's the way things are usually done. Statute can break entirely new ground, make things illegal which were legal before (e.g. cocaine) or legal which were illegal before (e.
    • In most states, the very first statute on the books is to adopt British Common Law.
      For example in Missouri the following

      Common law in force--effect on statutes. 1.010. The common law of England and all statutes and acts of parliament made prior to the fourth year of the reign of James the First, of a general nature, which are not local to that kingdom and not repugnant to or inconsistent with the Constitution of the United States, the constitution of this state, or the statute laws in force for the time

  • Slashdot sigs, too? (Score:3, Funny)

    by truthsearch ( 249536 ) on Thursday April 13, 2006 @12:48PM (#15122168) Homepage Journal
    We better all prey Slashdot sigs [seenonslash.com] don't count! Otherwise we're all going to have a lot of problems.

  • A clever lawyer eh? (Score:3, Funny)

    by Anonymous Coward on Thursday April 13, 2006 @12:54PM (#15122228)
    "Since the statute predates the Constitution of the U.S., a clever lawyer could argue it applies here equally."

    So THAT explains why whenever I order tea from Boston, I still have to send a tax to Britain.

    Thanks for clearing that up.

    (And just to be even clearer, while our legal system has its foundations in the English common law, we um, modify it with our own statutes and common law now. It's a little thing called independence.)

    IANAL, but IAALS (i am a law student). Although a grade school history class should be enough to know that the statement in the summary was way off... hmmmm...

    • no kidding... I get my tea from seattle for that very reason...LOLSinc

      A clever lawyer could argue what? That has got to be one of the dumbest things I have ever heard. It's not like the US told Britain to f*** off and we are going to make our own laws.

      • A clever lawyer could argue what? That has got to be one of the dumbest things I have ever heard. It's not like the US told Britain to f*** off and we are going to make our own laws.

        And in many cases, you did. Well done and all that!

        Here's the fun part though: You didn't replace every single law. Many of the British ones were perfectly servicable, and were simply taken as granted in the new system (which was obviously based heavily on the British one), and remained in force. If there is no new American l

  • So many things wrong with this summary.... (Score:4, Informative)

    by Mark_pdx ( 466326 ) on Thursday April 13, 2006 @01:03PM (#15122301)

    First of, the statute of frauds is exactly that, a statute. In the U.S. ach state has its own. So whether it applies to email could vary from state to state. The original English statute does not apply in the U.S.

    However, most states also adopt the UCC (which applies to sales of good vs. services), which has already been interpreted that signed emails satisfy the statute of frauds writing requirement.

    This isn't that big a deal, after all, even an unsigned letterhead satisfies the statute of frauds. You still need to prove offer, acceptance, and consideration to form a contract. You could still contest an email contract if there were fraudulent emails.

    • To further elaborate on this point, the Statute of Frauds is used as a defense only. If the contract falls within the statute of frauds, then writing is required. If a contract falls out of the statute of frauds, than a writing is not required in order to have a binding contract.

      For a contract to fall within the statute of frauds (in other words, for a contract to require writing) it has to meet one of the following:

      1) Marriage contracts
      2) Contract must be able to be performed within one year
      3) Land (real e

  • Conclusions are backwards (Score:3, Insightful)

    by metamatic ( 202216 ) on Thursday April 13, 2006 @01:37PM (#15122623) Homepage Journal
    Seems to me The Reg has drawn exactly the opposite conclusions the judge's decision supports.

    The judge ruled that the name in the header did not constitute the name required for a binding contract, because it was put their automatically as a matter of course.

    I think that similarly, a crappy e-mail signature disclaimer would be ruled completely invalid and not contractually binding, precisely because it is placed there as a matter of course, even when completely inappropriate.
  • I always understood a contract to have:
    1) An offer
    2) An acceptance
    3) Consideration
    4) Capacity to contract
    5) Legality

    Where are these elements in an email footer? Perhaps there's an offer, however there is no chance to decline acceptance. The consideration cannot be the email because it's one-sided. You aren't purchasing the email.

    Capacity is moot for this, and the legality is also moot.

    This will be over-turned.
    • Let's rewrite this instead to be like this:

      I always understood a contract to have:
      1) An offer
      2) An acceptance
      3) Consideration
      4) Capacity to contract
      5) Legality

      Where are these elements in a EULA? Perhaps there's an offer, however there is no chance to decline acceptance. The consideration cannot be the email because it's one-sided. You aren't purchasing the EULA.

      WHy is it possible for software EULAs to become binding at the time of sale, when the purchaser does not know the terms of any agreements he

  • Stem the Tide... (Score:5, Informative)

    by Rydia ( 556444 ) on Thursday April 13, 2006 @01:58PM (#15122796)
    In an attempt to stem the tide of stupid comments about the revolutionary war and everything, I would like to say that I AM a lawyer and we DO use English common law in many cases.

    We try to apply newer statutory law first. If that doesn't work, we fall back on the common law. When we go to the common law, we look for cases that are similar, and we apply them, often from other English common law countries AFTER the revolution, because we assume they run the same system and want to see what they did. It works pretty well.

    The effect, then, is that some really old cases are still good law in America, and how England has adapated them has some part in it. We don't always keep the old common law rule (seisen, for instance), and often we don't follow subsequent foreign interpretation (equitable servitudes), but there's a whooole lot of contract law that is heavily influenced by what other legal systems within the common law framework are doing.

  • Statute of Frauds (Score:5, Informative)

    by Phocas ( 147850 ) on Thursday April 13, 2006 @02:00PM (#15122821)
    I think from now on whenever I read a post on Slashdot that mocks people as idiots for not being techologically sophisticated I'm going to think of the posts on this story, virtually all of which are completely clueless about the law in a way comparable to someone who doesn't know what an operating system is and thinks Microsoft Windows is somehow an inherent part of every computer.

    It works like this. The statute of frauds is an ancient English statute that requires certain contracts to be in writing in order to be valid. Most contracts do not have to be in writing to be valid. However, back in the day, Parliament decided there was so much fraud based on suspicious witnesses showing up and swearing you really did promise to sell your estate for a pittance that something had to be done. What they did was enact the statute of frauds and since then, English contracts for certain things (such as the sale of land) must be in writing to be valid. The exact scope of that is actually quite complex, but that's the basic idea.

    At the time of the American revolution, much law was not in the form of statutes enacted by legislatures, but rather based on precedent, that is to say decisions previously rendered by the courts. That's part of what makes it a common law system. After the revolution, US state courts couldn't operate in a legal vacuum, so they continued to rely on English common law decisions for many years, not because they were obligated to do so, but because they had to come up with rules for dealing with situations, and English common law was a familar, readily acccessible source of such rules. Many states had reception statutes that instructed their courts to look to English common law precisely because they needed a source of law to apply and couldn't make up an entire legal system from scratch.
    Obviously today American courts don't need to look at English common law anymore except in certain very rare situations as we have over 200 years of our own cases to look at now. However, we still have an analogous situation today in which the courts of one state will sometimes look at the decisions of another state for guidance where an issue is coming up for the first time. It's not because the other state's decisions are binding, but because they might have some good ideas and good reasoning that are worth adopting.

    Today, most if not all states have enacted their own statute of frauds. The terms vary from state to state but the basic idea is the same, namely that certain contracts must be in writing to be valid. Whole books have been written on the statue of frauds. Visit the library of your local law school if you want to see more analysis than you ever imagined was possible on this issue.

  • Misstatement (Score:4, Informative)

    by Eue ( 930205 ) on Thursday April 13, 2006 @02:23PM (#15123029)
    I'm sorry, but this article blatently misstates the opinion. The judge stated that an email address alone is not enough to constitute a signature for statute of frauds purposes. The judge DID NOT say that having a signature block on an email was sufficient. Here is a key passage from the actual opinion:

    As well know to anyone who uses email on a regular basis, What is relied upon is not inserted by the sender of the email in any active sense. It is inserted automatically. My knowledge of the technicalities of email is not sufficiently detailed to enable me to know whether it is inserted by the ISP with whom the sender or the recipient has his email account. However, I accept Mr Aslett's submission that as a matter of obvious inference, if it is inserted by the latter it can only be from information supplied by the former. Mr Mehta suggested that the address was inserted by his employee. I do not see how this could be so and certainly Mr Mehta was not able to give me a coherent explanation of how that might be so. It is possible that Mr Metha's employee was authorised to use Mr Metha;s email account remotely but, even if that is so, I do not see how that can impact on any of the issues I have to resolve since it is not in dispute that the email was sent on the instructions of Mr Metha and the method by which the sender address came to be inserted would not be affected even if that was the position. It is submitted on behalf of JPF that the appearance of the sender's address at the top of the document constitutes a signature either by the sender or by "... some otherperson thereunto by him lawfully authorised ... " because it is well known to all users of e mail that the recipient of the e mail will always be told the e mail address of the e mail account from which the e mail is sent in the form it appears on the e mail referred to in Paragraph 3 above. That being so, it is submitted that by authorising an agent to send an e mail using the sender's e mail account, to a third party the sender knows that his her or its e mail address will appear on the recipient's copy and that is sufficient for it to be held to be a signature for the purposes of Section 4. It was submitted by Mr Aslett that intention was irrelevant -all that was required was a document that constituted a sufficient memorandum (which, as I have held, the e mail was) and the signature somewhere on the note or memorandum of either the person to be bound or his duly authorised agent. In support of this contention, Mr Aslett relied on the decision of the House of Lords in Elpis Maritime Company Limited v. Marti Chartering Company Limited [1991] 3 WLR 330. The facts of that case were very different to the facts of this case. There was no dispute in that case that the party to be charged had signed the document. The dispute in that case concerned whether or not the fact that the party to be bound signed the relevant document as agent made any difference given that there was a clause within the document that purported to create a guarantee by the party purporting to sign only as agent. It had been contended that if such was the case then the fact the agreement contained a clause under which the signing party personally agreed to guarantee certain obligations was not relevant. It was this last argument that was rejected by the House of Lords by reference to In re Hoyle [1893] 1 Ch 84 in which A.L. Smith LJ said: "The question is not what is the intention of the person signing the memorandum but is one of fact, vis is there a note or memorandum of the promise signed by the party to be charged?". It is because this is so that in other cases the courts have accepted letters to third parties, instructions to telegraph companies signed by the sender, and affidavits in unconnected actions as being a sufficient memorandum providing they are signed by the parties to be bound. It was this that led the House of Lords to conclude that it was irrelevant in what capacity or with what intention the document there being considered was sign

  • that's ridiculous (Score:3, Insightful)

    by penguin-collective ( 932038 ) on Thursday April 13, 2006 @02:43PM (#15123216)
    If the court interprets what is known as an "email signature" as a "signature", the court is deeply confused about how signatures are added. An email signature is more like pre-printed stationery.

  • >> It also just occured to me that with disclaimers such as:
    >> "This email and any files transmitted with it are confidential and
    >> intended solely for the use of the individual or entity to whom
    >> they are addressed.


    I always read those as though they said,

    "We're total losers who couldn't proofread an e-mail address if our business depended on it, which our lawyers advise us is actually the case. Instead of setting up an easy-to-use address book to handle and ver

  • Since the statute predates the Constitution of the U.S., a clever lawyer could argue it applies here equally.

    Or maybe just a trolling legal neophyte. English statute law prior to 1789 is in no way relevant to US statute law. Our legal system was largely based on English common law, but that's totally separate from statute law. The US declared independence from Great Britain in 1776; being no longer under the rule British government, the US ceased to be beholden to her laws, past, present and future. T

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