When you’re in the midst of discussing a potential deal, whether it’s engaging a contractor, hashing out a services agreement, or contemplating a business sale or purchase, it’s crucial to tread carefully in your email communications. The last thing you want is for your preliminary discussions to be misconstrued as a legally binding agreement.
As an Australian commercial law firm, we’ve unfortunately seen some of the consequences of legally-binding emails. Here are some straightforward tips to help keep your emails clearly in the realm of negotiation, not commitment.
1. Choose Your Words Wisely
Be explicit in stating that your emails are part of ongoing negotiations and not final offers. Phrases like “subject to contract” or “non-binding” can serve as clear indicators that you’re still in the discussion phase. This simple step can prevent a lot of misunderstandings down the line.
2. Speak Conditionally
Frame your discussions with conditional language. Terms like “should we proceed,” “potential agreement,” or “contingent upon” signal that you’re considering options, not making firm commitments.
3. Include a Disclaimer
A straightforward disclaimer at the beginning or end of your emails can make your intentions clear. Something along the lines of “This email is for discussion purposes only and does not constitute a formal offer or acceptance” can go a long way in setting the right tone.
4. Mention Formal Agreements
Make it clear that any final agreement will be subject to a formal, written contract. This underscores that the email chain is part of the preparatory work and not the final deal itself.
5. Avoid Definitive Statements
Stay away from language that suggests a deal has been finalized. Words like “we agree” or “this confirms” can imply a level of commitment you may not be ready to make.
6. Keep Details Provisional
While some level of detail is necessary for meaningful discussions, be cautious with how much you divulge. Make it clear that any terms or conditions mentioned are provisional and subject to change.
7. Seek Acknowledgement
Consider asking the recipient to confirm their understanding that the discussions are preliminary. This can provide additional clarity and reduce the risk of misunderstandings.
8. Consult a Professional
When in doubt, it’s always wise to seek legal advice. A brief consultation with a legal expert can ensure your email communications are crafted to avoid unintentional commitments, particularly in significant deals.
By following these simple guidelines, you can navigate the delicate phase of preliminary negotiations with confidence, ensuring that your email communications foster discussion without inadvertently binding you to a deal before you’re ready. Remember, clarity is key in communication, especially when potential legal agreements are on the line.
Disclaimer: This blog post is intended for informational purposes only and should not be considered legal advice. Consult with a qualified commercial lawyer for personalised advice related to your specific circumstances.
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