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It’s time to stop specifying how notices must be sent

As communications methods evolve, it seems pointless for notice clauses in contracts to specify the means by which notices must be sent. (Not that long ago, I saw a notices provision listing telexes as one of the permissible methods.)

The sample notice clauses focus instead on making sure that a notice is in fact received or refused. The sender of a notice, knowing that she might someday have the burden of proving up receipt or refusal, can choose whatever transmission method she deems appropriate.

  • In some routine situations, a party sending a notice might be comfortable transmitting it via email with an automatic return receipt.
  • In more-consequential circumstances, the party sending the notice might decide to go with FedEx, or certified mail, return receipt requested, delivery restricted to addressee, so as to have third-party evidence of successful delivery.
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