The GULS Law Review

Getting you through the GU law degree!

header photo

The Postal Rule in the Digital Age


 This article aims to discuss the reasons for the postal rule being utilised for the communication of electronic mail as well as the traditional letter method by drawing on conventional reasoning coupled with international developments.

Written by Katy McBride, fourth year student and sub-editor of the Obligations section of the review. 




In the era of mass communication being performed online through electronic mail (email), social networking and through a variety of websites and forums, it is no surprise that some complications have arisen when transposing traditional legal reasoning and principles onto the internet. The postal rule is one such example. As fewer letters are sent and more information is conveyed online, this article seeks to discover whether the postal rule would apply to acceptances made by email.


In traditional contract law, the “offer is only operative if actually communicated”.[1] This allows for the consensus in idem principle of contract law to be upheld as there is an understanding between the two parties that there has been an offer and there has been an acceptance; the minds have met. However, the postal rule was introduced to counteract certain issues facing postal acceptances. Firstly, there is a certain degree of uncertainty with the postal service. The party communicating an acceptance has done all that is reasonably possible to convey their acceptance by surrendering the delivery power into the postal service’s hands. Therefore, they should not be penalised for a late or non-delivery. Secondly, it is argued that the purpose is to protect the potential offeree from withdrawal of the offer by the offeror.[2] Macqueen suggests this can be avoided if the offer is irrevocable as in Germany.[3] However, this offends the freedom of contract principles that Scots law espouses; a person should be free to change their mind until there is acceptance. Since contracts create obligations from the moment of formation, at agreement by both parties, there should be no overtly onerous duty on the offeror to maintain their offer unless they have obligated themselves to do so. It has also been suggested that the postal rule helps to allocate risk where it is most easily borne.[4] Thus, since the offeree relinquishes control and the offeror is to receive it, the postal rule is balanced. Further, the offeror originally chose the postal system and was free to contract an alternative. Indeed, the postal rule has arguably diminished in prominence as parties contract out of it as they are free to do so.


An analysis of the process of email may lend its support to the postal rule. A person sends the email, it is uploaded to the Internet Service Provider (ISP), conveyed to the recipient and downloaded by their ISP when requested to by the recipient by logging in or by refreshing their mail centre for example.[5] Therefore, it is not as instantaneous as one may believe, nor as instantaneous as its verbal cousin; the telephone, whereby there is confirmation that the parties are having a contemporaneous discussion together.


The question of email being instantaneous or not can be reasoned if one thinks about it as being in ‘real-time’ or not. A telephone, an instant messaging system or a web chat is in real-time where parties converse and are answered as if it is a physical conversation.[6] However, email is not like this; sometimes you receive a timeous reply and other times “immediate feedback”[7] does not occur. One author notes that if speed is to be the reason for the postal rule; emails should therefore be covered by it as it can take hours or days for the person to read the email.[8] However, when the postal rule was first articulated there was no way to ensure your mail had arrived, never mind read. Yet now many postal services offer recorded mail allowing you to track delivery. Whilst there is no way to ensure they open it, if it is recorded delivery and someone has to sign for it, the mail has evidently arrived. With email it is possible to create notifications for delivery and for when the email is opened (and thus presumably read). The same constrictions do not apply to modern means of communication as they did in the 18th or 19th centuries. Further, if an email is unable to be delivered, ie the address was entered incorrectly, it is common practice to receive an email outlining the problem thereby allowing someone to take steps to rectify the situation; the knowledge of a non-delivery remains with the offeree.[9]


As technology rapidly improves and internet access is available in the vast majority of the country, questions of ‘dial-up’ and internet connection diminish.[10] More people than ever own and use a smart phone with many employees either possessing a work phone or using their personal phone for work emails. The world is more connected than ever with wireless internet connections being implemented in public areas nationwide with a governmental focus on expanding access. This makes it incredibly difficult to ignore the efficiency and speed of internet communication including email.


With regards to international developments, many common law countries follow the postal rule they inherited from England. Mayalsia is one such country. With regards to its effect on electronic contracts, commentary on their current law seeks to follow the English position whereby email is classified as instantaneous and therefore not covered by the postal rule. It is argued that the offeree is in a better position to know acceptance has been conveyed and to therefore ensure it has been communicated properly. Following Australian jurisprudence, Nygh and Martin Davis note that “the speed, cost effectiveness and widespread availability of computer-based and other forms of communication enable parties to better manage and control communications”[11] by allowing parties to send read receipts and alter contracts as they see fit to ensure their communication reflects intention. Malaysian law therefore concludes emails are instantaneous and as such, not protected by the postal rule.[12]


The Bahamas sought to invigorate its economy with a series of new legislation at the beginning of the 21st century. As a country following its inherited common law from England, it to employs the postal rule as an exception to receiving acceptances for contract formation. Their approach is to categorise emails as “transmission [that] is instantaneous but the communication is not”.[13] It appears that unless a party specifically requires receipt to be acknowledged for it to be effective, it is not necessary. This seems to be for designated information processing systems ie those run by companies as opposed to undesignated systems owned by individuals. This follows the discrepancy between email communication being sent immediately but not necessarily read instantly. Whilst a pragmatic approach, it appears impractical. Should the line be drawn between companies and natural persons? Or if there is ordinary practice by the person whether natural or juristic? Macqueen suggests email messages may be able to be understood to have been read and therefore become effective when they should have been read and effectuated in the ordinary course of business.[14]


Similarly to the Bahamas, New Zealand took active steps to modernise its law with regards to electronic communication. They concluded that an electronic communication is received at the time the electronic communication enters that information system for designated systems; or in any other case, at the time the electronic communication comes to the attention of the addressee.[15] They sought to impose a similar standard for receipt and delivery for electronic communication as paper-based methods[16] and follow the harmonisation efforts set forth by the United Nations Commission on International Trade Law (UNCITRAL) which are also reflected in the aforementioned Bahamas law. However, under Thai law, email is classed as non-instantaneous requiring the acceptance to have reached the offeror before it becomes effective.[17]


In conclusion, the postal rule was created to counteract a genuine problem where “the inherent delays in the principal method of communication (post) led to uncertainties in contract formation”.[18] The same issues cannot be said to plague email communications. Whilst it is arguable email is “transmission [that] is instantaneous but the communication is not”,[19] it cannot be said email requires the same level of protection afforded to the postal service. The UNCITRAL has endeavoured to harmonise the law on delivery and receipt in order to assist cross border international trade but is has neither settled the question nor provided enough persuasion to guide an answer. Instead it is argued that the decision will only be free of doubt once the court system has been faced with the question. Until then, parties are free to contract as they wish and to make decisions regarding their own rules of acceptance.


[1] H.L. MacQueen & J. Thomson, Contract Law in Scotland 2nd edn. (West Sussex, 2007), 52.

[2] Ibid., 55.

[3] Ibid., 55.

[4] S. Pitiyasak, ‘Electronic contracts: contract law of Thailand, England and UNCITRAL

Compared’ (2003) 9(1) Computer and Telecommunications Law Review 16-30.

[5] S. Jawahitha & E. Chikhaoui, ‘The adequacy of Malaysian law on e-contracting’ (2007) 13(4) Computer and Telecommunications Law Review 121-125.

[6] S. Pitiyasak, ‘Electronic contracts: contract law of Thailand, England and UNCITRAL


[7] Ibid.,7.

[8] D. Capps, ‘Electronic mail and the postal rule’ (2004) 15(7) International Company and Commercial Law Review 207-212.

[9] Ibid., 3.

[10] Ibid., 3.

[11] S. Jawahitha & E. Chikhaoui, ‘The adequacy of Malaysian law on e-contracting’, 3.

[12] S. Jawahitha & E. Chikhaoui, ‘The adequacy of Malaysian law on e-contracting’, 4.

[13] G. Hwang, ‘E-commerce in the Bahamas’, (2004) 15(3) Entertainment Law Review 97-10, 4.

[14] MacQueen & Thomson, Contract Law in Scotland, 54. utilising Burnley v Alford 1919 1 SLT 123

[15] Electronic Transmissions Act 2002 (New Zealand) s11

[16] A. J. Sawyer, ‘An Electronic Transactions Act for New Zealand - at last!’ (2003) 18(4) Journal of International Banking and Law and Regulation 151-159, 7.

[17] S. Pitiyasak, ‘Electronic contracts: contract law of Thailand, England and UNCITRAL

Compared’ 7.

[18] D. Capps, ‘Electronic mail and the postal rule’, 5.

[19] G. Hwang, ‘E-commerce in the Bahamas’, 4.




Go Back