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Thursday
Aug302001

Protect Yourself When Faxing Documents

Readers of LegalBriefs have often asked if a particular topic was written about them. Hopefully this is a sign that the topics we cover address issues you are facing in your business.

The answer to the question is no, we have not written LegalBriefs about problems at a particular business . . . until today.

When representing businesses with problems, I have always tried to take the approach of helping the business people involved learn what can be done to avoid similar problems in the future. A client gave me permission to share with you a problem they recently faced so that you can avoid similar problems.

Attorneys work hard to develop "boilerplate language" that you can use in your quotes, purchase orders, invoices and contracts. It is common in today's business communications to send these types of documents by fax. Problems can occur, however, when you fax the first page of your bid, quote purchase order, invoice, etc. without including the additional "boilerplate" pages.

This was the problem for my client. Rather than fax both pages of the quote document to a prospect, he faxed the first page with the product specifications and the dollar quote but did not include the boilerplate provisions. As you can guess, the reason he came to see me was because there was a dispute and the other side could argue that the contractual protections on the second page were not part of the dealings between this client and the customer.

Another common practice is for parties to negotiate an agreement and then circulate the signature page by fax for signing without faxing the rest of the agreement. Some of my fellow lawyers are just as guilty as businesspeople of falling into this trap. I understand why it is done, it simplifies things.

The risk, however, is that the parties could later end up in a dispute over what terms or what revisions should be in a particular provision. One side could argue that when they signed the faxed signature page, they thought Section 22 was going to say one thing when another party argues they thought it was going to say something else.

When faxing documents, take the extra steps necessary to protect yourself.

DO: Do include all of the pages of your quotes, purchase orders, invoices, contracts and other documents, including the boilerplate pages. Although people like to poke fun at the "small print" or the "legalese," that language is there for a reason. If it is your language, then that language should be designed to protect you. ALWAYS, ALWAYS, ALWAYS include all of the pages.

DO: Do insist that any agreement that you sign that is circulated by fax contain all of the pages to the agreement. That way, if there is any dispute, the header at the top of the page that shows page numbers and the date and time the particular pages were faxed will be the evidence you need that these were the terms you agreed to, not the terms that some other party later seeks to impose. ALWAYS, ALWAYS, ALWAYS include all of the pages.

DO: Do have the standard provisions of your standard agreements reviewed by legal counsel from time to time. Changes in the law, changes in your industry, changes in your practices and changes in your business could result in language drafted some time ago no longer giving you the protections you now require. Please feel free to call us to review your standard agreements with you.

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