If a discussion gets out of hand and a real conflict arises, can communication continue via email?
As a franchisee or franchisor, you may be familiar with the situation where you have a question or comment about the franchisor’s or franchisee’s conduct. Of course you can pick up the phone to discuss the matter or send an email to ask the question or comment in an informal way. Often the question will be answered or your comment will be taken up.
Sometimes, however, your first question or comment is the start of a discussion that can get heated. Of course, that discussion will continue to take place via e-mail, which is after all quick and easy.
Yes, you can, but this is not always wise. E-mails can be printed and as such serve as evidence of exchanged views and be used in proceedings. This does not mean that a judge is always bound by the content of the e-mail. Because an e-mail can be modified quite easily, an e-mail is assigned less probative value than, for example, letters. Although an e-mail provides a written record, for some messages to your franchisor it is still advisable to do so by letter. This mainly concerns the letter in which you hold your franchisor liable or raise other essential matters.
If an e-mail can be used as proof, why would you still communicate via a letter? You put a signature under a letter. That is an important difference with an e-mail. With a signature under the letter you indicate that you agree with the content and sending of the letter. The letter can also be sent by registered mail or by fax. In both cases you also have a receipt. It has now been established in case law that these proofs of receipt are also accepted as such.
It is also possible to request confirmation by e-mail or to place an electronic signature. However, it is not certain that these will also be accepted as proof of authenticity or proof of receipt. This is especially the case if the entire transaction between the parties has taken place electronically.
It is therefore good to record as much as possible during a discussion between franchisee and franchisor and e-mail can therefore be used for this. If necessary, the printed e-mails can serve as proof. However, when it comes to essential matters such as agreements, agreements, or statements of liability, it is advisable to send them by letter and preferably to provide a receipt by sending the letter by registered mail or by post.
Ludwig & Van Dam franchise attorneys, franchise legal advice