Are Texts Legal?

Texts are perfectly legal to send and receive both in the business sphere and in the personal space.

While texts are legal, it is important to know that texts also are a form of a contract, taking place solely via electronic communication.

It is especially crucial to be aware of the text message contract if you are intending to use SMS text messages for your business in any form.

We’ll take a deep dive into the ins and outs of text message contracts, as well as the relevant language that dictates these kinds of messages.

Let’s get right into it!

What Are Business Text Messages?

Like any other form of text message, business text messages are a form of written communication that takes place via mobile phones.

The only non-negotiable element of the text message is in its electronic format. The content, images, word choice, and intention are completely up to you and what your business is trying to convey to your clients.

These electronic communications take place between two or more parties, hence the back and forth nature of text messaging.

Generally, business text messages are used to send bulk SMS or mass messages to your entire customer base. These messages can be used for sending appointment reminders, surveys, and for receiving customer feedback following service.

While texting in its simplest form has been around for a while, new text message laws have risen in the recent years in order to provide structure and an enforceable contract to guide this messaging platform.

The most important element to understand about the legality of text messages is within the language present in the message.

If a chain of text messages includes necessary contractual language, then the text messages become legally binding.

When your text messages become a basic binding contract, it is recorded on electronic record through the message chain.

Language like “subject to contract,” “definite terms,” and “confidential information” are great ways to immediately establish a binding contract within your business text messages.

If you want your text message services to include contracts, you want to make sure it is clearly laid out in writing for your customers. You need to have options for acceptance of your terms, and an agreement between you and the recipient of the message.

Now that we know that there are a few crucial pieces to consider when conducting business text messages, let’s take a look at the elements that you’ll need to keep in mind while conducting instant messaging.

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How Should I Structure a Business Text Message?

Once you have created your SMS campaign,you should first pause to consider the intent of your business text messages.

The basic elements you’ll want to include are as follows:

  1. Link your messages with your business name.

  2. Make sure your intended purpose is central to your messages.

  3. Include links to your other socials– you can include attachments to a blog post, your website, or any other relevant content.

  4. Be aware of other regulations that may be present in texts, like character length and accessibility issues.

  5. Be sure to encourage back and forth communication between you and your clients– above all else, your intent should be to foster relationships for your business.

Once you have taken these elements into consideration, you are free to structure your messages any way you would like.

Your writing in these messages will illustrate your business persona, so make sure you create content that reflects your business goals and mission.

What is a Legally Binding Agreement?

In simple terms, a legally binding agreement is any agreement that is legally enforceable by either party involved in the contract.

These agreements are as binding as any other form of a contract, so it’s important to know that texts can constitute and enforce a contract.

This issue came to prevalence when an exchange of emails and texts between real estate brokers about estate planning needs went to court to decide if a letter of intent was legally binding in this format.

When this legal issue reached the Massachusetts state court, the legal team had to decide if a contract that takes place solely in this electronic space can still be considered legally binding.

The key in this specific instance is that once the legal team reviewed the language and terms present in the communication between St. John’s holdings and Two Electronics (the businesses who were questioning the legality of the contract at hand), the correspondence between these two businesses contained sufficient terms to create an agreement.

As you can see, it’s all in the language.

What can be a bit tricky is understanding the distinction between the enforceable contract that can be made through texts and other oral contracts that are made through other forms.

If these basic linguistic elements are not generally considered within every text sent from your business, you may run into some legal issues and other case law.

What is An Enforceable Agreement?

An enforceable agreement is an agreement between private parties creating mutual obligations that are enforceable by law.

These agreements are also legally binding, and can also take place solely via electronic communication.

Before you begin an SMS campaign for your business with the intent to create and sign an enforceable contract, you should make a note to receive a consultation from an attorney beforehand.

These contracts can be tricky to navigate, especially when they rely on specific word choices.

Additionally, having an attorney client relationship invites the other party to be involved in the contract process, making it less likely that the person will be unknowingly entering a deal or contract.

Keep in mind that an enforceable agreement is serious, and if violated by either party, can warrant a court held and court reasoned ruling that may hurt your business.

Before you decide to enter a contract with a client in writing, let’s take a moment to review exactly what a contract is and how you can implement them in your business texts.

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What is a Contract?

A contract is defined by a written or spoken agreement that is intended to be enforced by law.

A valid contract has a few elements to take into consideration:

  1. Offer and Acceptance

  2. Consideration

  3. Legality

  4. Capacity

  5. Creating Your Next Contract(s)

Your contract must satisfy all of these elements in order to be enforced by law and recognized as a valid contract.

As noted in the court held ruling of St. John’s Holdings, both parties must be in clear agreement about the contents of the contract as well as the statute that is in place if the agreements are violated.

Using the St. John’s Holding case as an example, let’s take a look into the elements of a contract to ensure you know exactly how to create contracts in writing in your business texts.

Elements of a Contract

The first stage in a contract is the offer and acceptance stage.

This is the time to bring in an attorney, and begin fostering the attorney client relationship that will end up being crucial to the success of your contracts.

At this point, you are conducting solid communications between you and your client. For St. John’s Holdings, these messages were being conducted via texts, emails, and letters, making the contract a bit muddy for both parties.

Ideally, you want to conduct all contract consultation on the same platform.

Since we are learning about how to create contracts via texting, the contract communication will be written and clearly labeled with sufficient contractual language.

Depending on the details of your offer, you may be including links to your site or options for your client to purchase something in these texts. Make sure that every piece of your offer is clear and concise to reduce any confusion on their end.

Before your clients accepts your terms, they will likely have a consideration period in which they go over the details of the agreement with their own attorney.

This stage is very important for the safety and longevity of the contract, as it ensures that both parties are on the same page as far as the written statute and subject to contract.

You’ll likely provide a date for the consideration period to start and end for your client, as well as giving them a date to sign the contract for your discussed agreements.

Make sure to enforce this consideration period well. It is technically the first time you’ll be enforcing something with this client– if they cannot follow the instructions of the consideration period, you may want to reconsider entering a contract with them.

Once the client has been given the chance to sign the deal (in a written format via text), you have now moved on to the legality stage.

At this point, you have established your contract as legally binding and both parties have acknowledged the agreement as a statute of law.

Your communications have covered intent of the contracts, the forms it may take, and the letters have been signed to make this agreement official.

Knowing that your contract is solid in the eyes of the law and is subject to court if violated is important to reiterate during this stage just to bring home the intensity of the agreements you have created.

After legality has been discussed at length, it’s time to discuss the capacity of the agreement.

This basically means that both you and your client are willing and able to enter an agreement of this kind.

The capacity element has likely already been discussed via prior communications and in the acceptance stage as well.

The final stage of entering a contract is the discussion of further contracts with this given client.

At this point, you have created a working contract with this person and have established solid communications with them as well.

Your contract will likely constitute a certain amount of time, so this stage may not be important for a year, for example.

Regardless of the time that your contract will be taking place, it’s always a good idea to be aware of what comes next in this process.

How Kennected Utilizes Texts in Our Business

At Kennected, we have spent lots of time researching the legal elements of text contracting, as well as the benefits of electronic communications like texting and emailing.

Regardless of the forms it takes, staying in communication with our client base is extremely important to us and our mission.

We personally love to link our site to our texting efforts, helping to increase website traffic to our socials and any given blog post as well.

Regardless of our subject matter, we always keep our clients at the center of our texting and our writing.

We keep the best interests of our clients in mind, especially when entering a contract over the texting format.

We pride ourselves on the power of writing, and always keep the law in consideration, and your business should too. 

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