Question Description
When can emails, instant messages, tweets, etc. create a contract -especially when you did not think you were creating a contract.
In a case out of Florida from 2011, this issue was litigated betweenCX Digital Media an online marketing service, and Smoking Everywhere,Inc., a retailer of electronic cigarettes. CX Digital charges a fee toits clients of which Smoking Everywhere was one for providing salesreferrals. The two companies were in the process of negotiating changesto their contract via instant messaging. The parties were "discussing"the issue of the maximum number of referrals per day (more referralsmeans a higher fee to CX). A CX employee sent a message to a SmokingEverywhere executive asking about the maximum number of referrals. TheSmoking Everywhere executive replied "No Limit". The CX employeereplied "Awesome"
After. CX referred a higher volume of sales leads than it had donepreviously. Smoking Everywhere refused to pay the additional fee forthe extra referrals, claiming that the instant messaging chat was not anenforceable contract modification of the initial contract.
Who do you think won at trial? What can a company do to avoid "accidental" contracts via email, text, tweet, etc.?
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