Adequate documentation does not begin and end with the written contract provisions that form the foundation of your business relationship. A business relationship is not static and your ongoing documentation efforts shouldn’t be either.
Here’s what I mean: Even in the Gadget Age, the vast majority of business is still conducted by phone or in person. And that means the vast majority of business is conducted orally.
In very general terms, the law makes very little distinction between oral representations and written representations. But, in practice, juries often do.
For instance, your vendor can tell you not to worry about a particular contractual provision, thereby legally (at least in theory) modifying a provision of your agreement.
In theory, that oral modification could later provide you the legal protection you need. But if you end up in court in a dispute over who said what, you can simply never know who the jury will believe.
Enter the confirming email.
Bill: I just wanted to confirm that you have agreed that delivery of the product on the 18th is sufficient even though the written contract calls for the 5th. — Jim
Jim: Your understanding is correct. The 18th is no problem. — Bill
It probably took a total of two minutes to write, send, receive and read these emails. And during those two minutes you may have just avoided a costly and risky business lawsuit that might otherwise boil down to a case of he said-she said litigation.
If all this seems obvious or second nature, you may be surprised. An experienced Portland contract dispute lawyer or Seattle vendor dispute attorney will tell you that written confirmations are far more rare than they would prefer.
Let me be clear about this: the confirming email does not mean you’re absolutely and for all purposes in the clear. If the issue is a big one, such as a material breach of contract, call your lawyer and take the time to go through and do it right. But, all things being equal, as a Portland business dispute attorney I’ll take a confirming email over an oral conversation any day of the week.
Business owners and employers should train employees to send confirming emails, and then must hold them to it. And by all means, C-level executives must lead by example.