The ‘Notices’ Provision

This section is often given short shrift by lawyers and clients alike. However, it can be quite meaningful. Three key issues to consider are (1) the method or methods by which notices must be sent, (2) the time at which notices are deemed to be effectively given, and (3) who should be copied on the notices besides the primary contact (e.g., legal counsel).

Many Notices provisions will permit notices by first class mail, fax and sometimes email. That’s okay for unimportant notices. But, in circumstances where a notice can have dramatic importance (for example, a money release demand under an escrow agreement), I wouldn’t want my client’s money hinging on whether they saw and acted on a regular letter, fax or email. Rather, I prefer to require that important notices be sent by overnight courier or perhaps registered or certified mail. My sense is that FedEx packages or certified letters are treated with more urgency than more ordinary forms of communication. The key is to ensure that the client doesn’t inadvertently lose a right.

Regarding the time at which notices are deemed to be effectively given, there are two main considerations:  (a) should notices be deemed to be given only if actually received, or upon some stated number of days after sending? (note that the ‘right’ answer depends on the client and the context); and (b) is the number of days provided for realistic? (e.g., one business day for courier packages sent overseas is typically insufficient).

In addition, the manner by which notices are given must dovetail properly with the nature and timing of the provisions requiring notice. For example, if a party has “5 days after notice” to take action, and the Notices provision says that notices are deemed to be given upon deposit in the U.S. mail, it is quite possible that 2 or 3 days of the 5-day period will elapse before the party actually receives the notice (thereby reducing the actual response period to only 2 or 3 days).

One other consideration, usually addressed in the applicable contract sections, is the required content of notices. For example, it is worthwhile to indicate that ‘breach of contract’ notices specify in detail the nature of the breach and the remedy requested by the party giving notice. Similarly, it may be desirable to provide that ‘right of first refusal’ notices must disclose the proposed buyer’s identity as well as just the proposed price. In both cases, the extra information may be quite relevant and valuable, yet would not clearly be required in the absence of a specific clause.