Take Notice of Notice Provisions in Contracts

When signing a contract, make sure to check the “notice” clause or provision. It lays out how you and the other party will communicate during the term of the contract. Specifically, it states who the notice should be sent to (such as the CEO, attorney, office manager), where it should be sent (the other party’s address), how it should be delivered (such as first class mail, certified mail or fax), and when it was deemed to be received (such as five days after sending). It may also state if other parties (such as an attorney) should receive a copy of the notice.

For example, let’s say you sign a contract and the other party does not perform its obligations. You make several phone calls to try and work out the dispute. Under the contract, you must provide written notice of default by first class mail to the vice president at the company’s headquarters. This is generally done in the form of a letter that spells out the other party’s responsibilities and provides a deadline to rectify (or “cure”) the dispute.

In addition to providing notice for defaults, a contract may provide notice of delays, change orders, termination of the agreement, and other events.

A notice should be specific and be written in understandable, professional language.

Can You Send a Notice by E-Mail? The answer depends on the contract. If it states that notice can be provided by e-mail, then you can send it by e-mail. However, there are reasons why only sending a legal notice by electronic communication might not be the best course of action:

1. The other party could say that he or she never received it. Can you prove an e-mail was received?

2. The other party may have changed e-mail addresses and the one you are sending to could be a closed account.

3. The message could go into a spam folder or be deleted because the recipient thought it was junk mail.

4. The other party may say they didn’t receive the notice, perhaps because they didn’t check the e-mail account for several days. If there is a deadline attached to the letter, say five days from receipt, how do you determine when it was received?

If you want to send a notice by e-mail, consider also sending it by certified mail, with return receipt requested. That way, you have proof it was received in the event you must go to court.

It is important to strictly comply with the notice provisions in contracts. Consider what happened to one contractor who failed to provide notice pursuant to the provisions of the contract he signed with another company. The contractor simply stopped providing services because the other party stopped making payments. He never sent a notice. In the eyes of the contractor, the other party breached the contract. However, in court, the contractor was found to be in breach of the contract because he never sent a notice to the other party that payments were not being made.

In another case, a contract required notice to be given in writing and mailed by “certified mail, return receipt requested” within a specified time frame. However, one party sent a notice by fax, which the court ruled did not satisfy the contractual requirements. Therefore, the case was dismissed.

So pay attention to the notice provisions in contracts you sign. This article only discusses the basics. Consult with your attorney if you need more information about contracts or notice provisions in your situation.