In this digital age it is expected that parties involved in a business transaction will largely exchange information and communicate by email. This is the case whether you, as an architect, are communicating with your client in respect of a design you are developing or with the builder while administering a building contract. With mobile phone use now ubiquitous in the industry, the use of text messaging and social media applications is also becoming more common but should not be relied upon for professional communication.
Is communication by text (via text messaging or social media applications) or by email contractually and legally appropriate? Communication by text is not considered contractually and legally appropriate, and poses risks to the parties involved. Contracts of all types specify communications to be in writing and usually specify an email address or physical location for delivery of notices and other communications.
You can confidently send all communications electronically (including emails and via document management systems such as Aconex) except where:
- The building contract or client or subconsultant agreement requires communication to be delivered by another means. Where this is the case you need to comply with the notice requirements of the contract. That said, if you find yourself involved in a contract which requires communication by post, fax or (depending on how old the form of contract is) telex, to make your life and that of the other parties easier you should get their agreement (in writing of course!) to sending notices by email.
- You need to be sure that the other side gets your communication. For example, if you are issuing a payment schedule under the state Security of Payment legislation don’t run the risk of the builder not receiving it within the legislated time. Where you need to ensure that the communication is received it is prudent to email it and send it by registered post or courier.
Text messaging considerations and risks
How will you prove receipt of a text message? How will you prove the recipient was authorised to receive the text message? How will you prove sending a text message complies with the contract conditions?
Another important issue to consider is the formality of a text message and whether it complies with the terms of your contractual arrangements. Text messages tend to be short and abbreviations are often used. The recipient may be confused or misled by abbreviations you use.
Proof of delivery and compliance with the terms of the contractual arrangements are important factors. These are day to day issues with every project and correct communication is often the key to a successful project for your clients or customers.
A review of legal actions involving text messaging all centre on whether a recipient received the text at the centre of the dispute. In these cases, the recipient of course has denied receiving the text. In one case the recipient tendered a receipt for repair of their mobile phone to show they were having trouble with the phone. Reputations are at risk.
In other cases, there was an order for delivery up of the mobile phone so a forensic examination could be undertaken. These are expensive and time consuming steps.
Summary
We recommend that you do not use text messaging for professional communications and when relying on or using email to send notices or important correspondence to your client or the builder, you should always request a Delivery and Read Receipt confirmation via your email software platform or application.
We recommend text messaging be avoided. Contracts do not presently provide for a 'text messaging clause' and we recommend that if one is put forward, it be rejected.
If you are still in doubt about whether you can or should use text or email, get legal advice on the relevant contract or agreement. You might want to contact the free legal reference service.
This content has been prepared by and reproduced with the kind permission of Jeremy Johnson of Jeremy Johnson & Associates and Hugh Watson, Principal at Moores. The information and commentary in this note is for general guidance only. It is not legal or professional advice for you to rely on.
Disclaimer
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