Electronic signature cases and English law
As the September 2019 Law Commission Report on Electronic Execution of Documents observed: “An electronic signature is capable in law of being used to execute a document provided that:
- the person signing the document intends to authenticate the document and
- any formalities relating to execution of that document are satisfied.”
Usually, when we sign documents, there is no actual legal requirement to use a signature. Where there is no legal obligation and no other formality requirement we sign voluntarily–and the position is simple: English law recognises electronic signatures. This includes both formal and informal electronic signatures.
Read more about why your electronic signature is safe.
What is an informal electronic signature?
An informal electronic signature can be a name typed at the end of an email or a scanned signature–both readily recognised as a signature.
What are the pros and cons of using an informal electronic signature?
Previous court cases have resulted in decisions upholding informal electronic signatures–an example being Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd. This case concerned a contract of guarantee, which under S.4 of the Statute of Frauds 1677 had to be signed by or on behalf of the guarantor in order to be enforceable. The contract was said to be formed in a series of emails. It was common ground between the parties in the Court of Appeal that for the purposes of s.4 “an electronic signature is sufficient and that a first name, initials, or perhaps a nickname will suffice.”
The downside is that although an informal electronic signature is can constitute a signature, it:
- Carries greater evidentiary and enforceability risks
- Can be unclear whether the name inserted in the document was intended to be a signature at all
- Can easily be copied
- Is unclear whether a required formality was complied with
Regarding the case summarised above–while “an electronic signature is sufficient and that a first name, initials, or perhaps a nickname will suffice”, there was an issue as to whether the informal sign-off ‘Guy’ was intended to be a signature. The judge held that the sender put his name, Guy, on the email so as to indicate that it came with his authority and that he took responsibility for the contents. It was an assent to its terms. He had no doubt that that was sufficient authentication.
When an electronic signature is applied using a structured process that is available via an electronic signature platform, these uncertainties and disputes do not arise.
DocuSign eSignature provides a structured electronic signing process including an audit trail or Certificate of Completion, that provides enhanced evidence of the transaction history to further strengthen the enforceability of the document. Additionally, a structured technical environment and step by step process for electronically signing documents is provided. This process makes it clear to the signatory before signing that what they are about to do is sign the document.
Learn more about English law and court cases around electronic signatures in our eBook: Electronic Signature Cases - English Law.
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