Many people don't quite realize that almost any kind of "agreement" can be seen as an enforceable contract in the eyes of the courts. While some people think a contract has to involve a full written document and signatures, that's often not true at all. Take, for example, a case involving affiliate sales of e-cigarettes, in which a written contract was deemed to be modified by a simple instant messenger conversation
. The affiliate company, CX Digital, wanted to remove the contractual limit of 200 referrals per day for sales of Smoking Everywhere's e-cigs, and the following IM conversation ensued:
[CX] (2:50:08 PM): We can do 2000 orders/day by Friday if I have your blessing
[CX] (2:52:13 PM): those 2000 leads are going to be generated by our best affiliate and he's legit
[Smoking Everywhere]: is available (3:42:42): I am away from my computer right now
[CX] (4:07:57 PM): And I want the AOR when we make your offer #1 on the network
[Smoking Everywhere] (4:43:09 PM): NO LIMIT
[CX] (4:43:21 PM): awesome!
Smoking Everywhere then tried to bail out on paying CX the affiliate fees owed, and claimed (among other things) that this didn't represent an actual modification of the contract which had the 200 per day limit stated. The court didn't buy it, noting that this is a perfectly fine example of an offer, counter-offer and acceptance, all encapsulated in instant messenger:
After the discussion between Touris and Soltani about switching the URLs, Soltani sends an
offer to Touris: "We can do 2000 orders/day by Friday if I have your blessing . . . . [a]nd I want the
AOR when we make your offer number one on the network." ... Touris responds,
"NO LIMIT." ... CX Digital argues that Touris accepted Soltani's offer by saying "NO LIMIT."
The Court agrees a contract was formed but clarifies that Touris's response acted as a rejection and
counter-offer that Soltani accepted by then replying "awesome!"
Here, Touris's response of "NO LIMIT" varies from the two specific terms Soltani offered
and so acts as a counter-offer. Soltani proposed CX Digital provide 2,000 Sales per day and that
CX Digital be the AOR or agent of record..., a term of art meaning the
exclusive provider of affiliate advertising on the advertising campaign.... Touris makes a simple counter-offer that there be no limit on the number of Sales
per day that CX Digital's affiliates may generate ... and makes no mention of
the AOR term. Soltani enthusiastically accepts the counter-offer by writing, "awesome!" ... and
by beginning to perform immediately by increasing the volume of Sales
So, for those of you interested in contract law, let this be a simple lesson in what it takes to form a contract... and, yes, it is kind of awesome.