It has been established that a contract may be formed by email – inadvertently or otherwise. Last autumn the Law Commission in England & Wales reported on the use of dry signatures in the execution of documents.
The law relating to signatures and other formal requirements has a history spanning centuries. As far back as 1677, the Statute of Frauds required documents to be in writing and signed. It is still in force today. But the documents executed in today’s world are no longer the same as those used over 400 years ago. Individuals, consumers and businesses demand modern, convenient methods for entering into binding transactions. Technological documents have changed the ways in which these transactions are made and will continue to do so at an ever-more-rapid pace.
A dry, or electronic, signature (e-signature) can be used to execute a document provided that (a) the person signing intends to authenticate it and (b) any legal formalities, be they legislative or contractual, are observed such as the signature being witnessed. An e-signature is admissible in evidence to prove, or disprove, the identity of a signatory or their intention to authenticate the document. When it comes to witnessing deeds, the requirement of the physical presence of a witness would extend to circumstances where an e-signature is used.
At the launch of the Report, Stephen Lewis of the Law Commission said:
Electronic signatures can offer quicker and easier transactions for businesses and consumers.
Our report aims to provide an accessible statement of the law which makes it clear that an electronic signature can generally be used in place of a handwritten signature as long as the usual rules of signatures are met.
The Lord Chancellor, Robert Buckland QC MP, published his response in March 2020, noting that:
The existing framework makes clear that businesses and individuals can feel confident in using e-signatures in commercial transactions.
An Industry Working Group is to be established to further consider issues on the security and technology of electronic signatures. It should be noted that the Law Commission’s consultation expressly excluded any consideration of the execution of Wills nor the conveyancing of registered land.