Keep in mind that the question about receipt of contract acceptance is going to be most important when parties have a contract dispute and hire lawyers and go to court.
Example: One party is suing the other party for breaching the contract and the other party defends by arguing "I did not breach because we did not have a contract. Your client never agreed to our counteroffer." So there might be a need to prove there was a written agreement in court.
Section 29 of SCR310 was designed to accomplish several goals:
1. Everything should be in writing (paper or electronic writing). This is license law and NAR code of ethics. Writing makes a contract more easily enforceable in court than a verbal agreement.
2. Minimize informal text contract communications impacting the contract much like the law minimizes verbal contract communications. This deterrence is accomplished by requiring deliver to the agreed upon ADDRESS (typically the brokerage’s address) and or EMAIL (typically the appropriate licensee’s email) and or FAX (typically the brokerage’s fax number. Note there is no TEXT Number notice in the SCR310, this omission of text is by forms committee design.
3. Require DELIVERY and RECEIPT and AWARENESS OF RECEIPT. This three-part system is to help prevent (1) receptionist losing a delivered document (2) email getting lost in the recipient’s spam filter (3) fax machine eating a fax. Note that there is an awareness requirement, but not an acknowledgment requirement.
#3 Requires the receiving party knows they received (e.g. awareness of receipt), but does not require the receiving party to sign any sort of receipt (e.g. not a bad idea to get a receipt as evidence of receipt but not required).
While formal written acknowledgment of receipt is ideal for evidence/proof in a court of law, SCR310 Section 29 does NOT require formal written acknowledgment of receipt. It is a good idea to get written acknowledgment, but some people are stubborn and might refuse to give acknowledgment. But you can force awareness of receipt.
ADDRESS DELIVERY:
While SCR would recommend getting the receptionist to perhaps write name/date/time on a copy as evidence of delivery and awareness of receipt, there is no requirement for this because there is no way to force someone to provide a receipt. In the situation with a stubborn receptionist refusing to give a receipt, perhaps the delivering licensee uses their smartphone to videotape the delivery and receipt. Certainly, UPS or Fedex or USPS delivery tracking could also help prove delivery and receipt and awareness of receipt. SCR also recommends talking and calling and talking to the other licensee and stating "I am handing the documents to your receptionist at your office."
EMAIL DELIVERY:
Ideally, getting the recipient to reply to your email is ideal evidence of delivery/receipt/receipt-awareness…this would be good evidence in a court of law.
Secondarily, the licensee can phone and talk to the other licensee saying "I just emailed you the buyer’s acceptance of your seller’s counteroffer. Glad to be working toward closing with you. Please check your email inbox asap."
Note that I write "talk" and I do not write "leave a voicemail" because voicemails can be accidentally deleted or left at a wrong number or otherwise never heard.
A lot of hotline issues would disappear if licensees would go "old school" and talk to each other on the phone rather than relying on voicemail and text messaging and email.
FAX DELIVERY:
Similarly to email delivery, send the fax and call and talk to the other licensee: "I just faxed my seller’s acceptance of your buyer’s offer. Glad to be working toward closing with you. Please check your fax machine asap."
The SCR member benefit of zipForms Digital Ink helps with delivery evidence. Always follow up, by calling the other licensee and talking "My buyers just e-signed your seller’s counteroffer and we’ve sent via zipForms. Please check your inbox asap."
Bottomline:
Written acknowledgment of delivered receipt is ideal, but someone might balk giving a receipt to you.
So SCR310 does not require written acknowledgment of receipt delivery but does require awareness of receipt.
You can force awareness. Call and say "I delivered and you received."
You cannot force written acknowledgment. People might refuse to sign. Probably rare, but could happen.
SCR310 is trying to require written contract and delivery and receipt and awareness of receipt to protect against lost documents.
Posted by : Byron King on 5/1/18 (This information is only accurate as of 5/1/18. You must contact SCR for updates and changes to this information after 5/1/18 as laws and regulations may change over time. SCR 803-772-5206 or email info at screaltors.org)
