Below are some questions that commonly arise with electronic signatures, together with possible solutions.
What constitutes an electronic signature?
A wide range of options are available. Examples include:
- A person typing their name into a contract or into an email containing the terms of a contract.
- A person electronically pasting their scanned signature into the signature block of an electronic (i.e. soft copy) version of the contract.
- A person inserting their scanned or typed signature into the signature block of a contract via a web-based e-signature platform (such as DocuSign or Adobe Sign, among others).
- A person using a finger, light pen or stylus and a touchscreen to write their name electronically in the signature block of the contract.
Are electronic signatures legal?
Unless statute or the document itself provides for otherwise, electronic signatures can be used to sign documents (including contracts and deeds) governed by English law provided that (i) the person signing the document intends to authenticate the document and (ii) any formalities relating to execution of that document are satisfied. An “intention to authenticate” means an intention to sign and be bound by the document being signed. To evidence this intention to authenticate, good practice would be to confirm the method of execution in advance by email or as part of the terms of the contract.
Can another person apply my digital signature?
Where a person is authorised to sign on behalf of a company or another organisation, they should sign the document personally by inserting their signature, rather than sub-delegate this to someone else (e.g. to paste in their scanned signature), unless, in the case of simple contracts, the authority (e.g. the board resolution and/or the organisation's board-approved signing policies) specifically authorises sub-delegation (for instance to another team member or employee).
Does it matter where I am located when I provide my electronic signature?
If it is essential that a document is signed in a specific jurisdiction (e.g. for tax or regulatory reasons), caution should be exercised. Common sense would suggest that the overriding factor should be the physical location of the signatory when they input the relevant commands into the computer to sign a document electronically. However, this is not beyond doubt – for example, the location of the server on which the document is stored may also be relevant.
If I don’t have a scanner can I send a photo of my signature page?
Where a signatory does not have access to a scanner at home, a digital photo of the executed signature page may provide an alternative. On a practical level, the whole of the signature page should be clearly visible. Caution should be exercised where the document is being executed as a deed, where the Law Society guidance on Execution of documents by virtual means should be followed.
Can a combination of execution methods be used?
A document may be signed using a combination of different methods, so long as each party uses a valid signature method.
What if further changes to the document must be made after I sign it?
Amendments (electronically or manuscript) may be made to a document following electronic execution to the same extent they may be made to a document executed with a wet ink signature.
Do I need special software to sign documents electronically?
No special software or dedicated platform is needed. However, e-signature software and platforms can be helpful as they may have built-in processes to ensure that documents are signed properly, to verify the identity of signatories and to provide evidence of proper signing (i.e. through tracking IP addresses or logins), which can reduce the risk of mistakes and fraud.
Can I use an electronic signature to sign a deed?
Electronic signatures can also be used with deeds. However, the formalities for deeds can create additional problems. If a witness is required (e.g. where a private individual is signing, or a single director is signing a deed for a company), they must be physically present to see the act of signing. For companies, consider if it is easier for two directors (or a director and the company secretary) to sign, as they do not need to witness each other's signatures. The parties should also ensure the signing arrangements adequately address when delivery of the deed takes place.
Can my spouse or relative witness my signature?
Another party to a deed cannot be an attesting witness. However, other than for wills, there is no general requirement that a witness must be independent in relation to the signing parties. So a signatory's spouse, cohabitee, civil partner or employee is not prohibited from acting as a witness. However, since the witness could be called to provide credible evidence of due execution, independent witnessing remains best practice. A minor should only act as a witness if they are of sufficient maturity and understanding to provide reliable evidence.
To view a table on using electronic signatures with a range of commercial contracts, please visit Electronic signatures and commercial documents – English law.
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