CONTRACT BY EMAIL

Kolchins v Evolution Mkts., Inc., 2018 NY Slip Op 02209, Decided on March 29, 2018, Court of Appeals, Stein, J.:

"In considering whether a binding contract exists, "[t]he first step . . . is to determine whether there is a sufficiently definite offer such that its unequivocal acceptance will give rise to an enforceable contract" (Matter of Express Indus. & Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 589-590 [1999]). In that regard, we recently reaffirmed that our decision in "Brown Bros. presents the template for deciding a case, such as this one, where the issue is whether the course of conduct and communications between [the parties have] created a legally enforceable agreement'" (Zheng v City of New York, 19 NY3d 556, 571 [2012], quoting Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 398 [1977]). Under Brown Bros.,

"it is necessary to look . . . to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds. In doing so, disproportionate emphasis is not to be put on any single act, phrase or other expression, but, instead, on the totality of all of these, given the attendant circumstances, the situation of the parties, and the objectives they were striving to attain"

(41 NY2d at 399-400). While the courts are charged with interpreting written instruments, "where a finding of whether an intent to contract is dependent . . . on other evidence from which differing inferences may be drawn, a question of fact arises" (id. at 400).

Of course, "[i]f an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract" (Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482 [1989]). This "requirement of definiteness assures that courts will not impose contractual obligations when the parties did not intend to conclude a binding agreement" (id.). However, while a "mere agreement to agree, in which a material term is left for future negotiations, is unenforceable" (Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109 [1981]), the "terms of a contract [do not] need [to] be fixed with absolute certainty" to give rise to an enforceable agreement (Matter of Express Indus., 93 NY2d at 590; see Cobble Hill, 74 NY2d at 483). At the same time, "if the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed" (Scheck v Francis, 26 NY2d 466, 469-470 [1970]; see Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439 [2016]).

Here, we conclude that, based on all the documentary evidence proffered by defendant, a reasonable fact-finder could determine that a binding contract was formed. Ertel's initial email to plaintiff stated that "[t]he terms of our offer are the same [as the] terms of your existing contract" — apart from "a clarification" concerning an issue that plaintiff characterizes as minor — and outlined the core terms that were included in the 2009 Agreement. He added that, if plaintiff had "[a]ny further questions" he should consult his "existing contract." Inasmuch as this email explained that "the terms of the offer" were to be nearly identical to the terms of plaintiff's existing contract, a reasonable fact-finder could interpret it as evincing an objective manifestation of defendant's intent to enter into a bargain, such that plaintiff was justified "in understanding that his assent to that bargain [was] invited and [would] conclude it" (Restatement [Second] of Contracts § 24 [1981]). Put differently, it could reasonably be inferred that Ertel's email constituted a valid offer by defendant. In response to that email, plaintiff wrote "I accept. pls [sic] send contract," to which Ertel replied, "Mazel. Looking forward to another great run."[FN4] Affording plaintiff the benefit of every favorable inference, this exchange — in essence, we "offer" and "I accept," followed by an arguably congratulatory exclamation, coupled with a forward-looking statement about the next stage of the parties' continuing relationship — sufficiently evinces an objective manifestation of an intent to be bound for purposes of surviving a motion to dismiss [FN5]. Although Ertel's email referenced one outstanding "clarification," the parties' further [*4]communications indicate that such clarification was incorporated into the first draft of the new agreement sent by Zeliger to plaintiff, and no evidence was offered to suggest that plaintiff resisted that change to the terms of the 2009 Agreement."