For years, it has been common place for modern commercial lawyers to accept scanned copies of ‘wet ink’ signatures to exchange and complete agreements remotely to avoid the need to have all parties present in the same room. However until July 2016, we always had to ask our clients to provide us with a scanned copy of a ‘wet ink’ signature. This meant clients had to be near a printer and a scanner on the completion date which is often not practical and ignores the recent advancements in touchscreen technology and e-signature platforms which could otherwise make paper obsolete in the process.
I was therefore delighted when the Law Society of England and Wales and the City of London Law Society issued guidance endorsing the use of electronic signatures in legal transactions in July 2016 (the “Guidance”) following the introduction of the Regulation on Electronic Identification and Trust Services for Electronic Transactions in the Internal Market (910/2014/EU). These regulations are not directly relevant as they primarily relate to ‘advanced’ and ‘qualified’ forms of electronic signature which are not commonly used in the UK but the Law Society Guidance does cover a broader range of electronic signatures and is therefore more relevant and interesting.
Firstly it is worth considering what might could constitute an ‘electronic signature’ for the purposes of the Guidance. It is very wide and could include:
(a) a person typing his or her name into a contract or an email containing the terms of a contract;
(b) inserting an image of a signature into an electronic/soft copy of a contract;
(c) applying an e-signature using an electronic signature platform like Adobe Echosign;
(d) using a finger or stylus to sign on a touchscreen device;
The Guidance takes the view that in the vast majority of cases, an electronic signature should be carry the same weight and effect as a ‘wet ink’ signature on contracts and deeds. Further that if any party wished to challenge the authenticity of an electronic signature then an English court should apply the same test that would apply if the signature had been ‘wet ink’. It should be noted that in order to ‘witness’ an electronically signed document, the witness should be in the same physical location as the signatory.
If you wish to discuss any of the issues raised in this article please contact Henry Maples, Associate, on 01872 226998 or firstname.lastname@example.org.
The information provided in this article is for general information purposes only and does not constitute legal or other professional advice and cannot be relied upon as such. Appropriate legal advice should be sought for specific circumstances before any action is taken. Copyright © Murrell Associates Limited, February 2017.