Electronic Mail Communications Sufficient to Constitute Contract

In what can be described as a significant move in Ghanaian contract and electronic communications law, the Supreme Court of Ghana in the case of Atuguba & Associates v Scipion Capital (UK) Ltd & Holman Fenwick Willian LLP has stated that electronic communications may well constitute a contract so long as an offer and acceptance is discernible.

In this case, the Defendant engaged the services of the Plaintiff law firm. The Defendant required the services of the Plaintiff law firm urgently. As a result, the parties did not enter into a formal contract before commencement of work. Differences arose between the parties regarding the amount to be paid for the work done. The Defendant suggested fees way lower than that which the Plaintiff was willing to accept. The Defendant, as part of its arguments, said there was no contract between the Plaintiff and it. In the view of the Plaintiff, there was enough by way of contract.

The Supreme Court rejected the Defendant’s argument. The court noted that: “In an internet age, email communication has been the order for expeditious business transactions such as the one before us. The appellant law firm had just under 24 hours to finalise a deal and represent the 1st defendant, who is resident abroad, in the courts in Ghana. Without prejudice to the pending matter before the High Court, we hold that email communication sent by one party making an offer, which said offer is accepted, by the other party also by email constitutes a binding contract enforceable at law.”

The court went on to say that “…[I]n an age of dynamism of knowledge in society, businesses and virtually almost everything around us; this court will (again without prejudice to the substantive matter pending before the trial court) not gloss over an offer made and accepted in an email or other electronic means of communication or an assertion made in a statement of claim which is not denied by the other party to form the basis of the existence of a valid contract between them.”


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