Why is it that people who do all their business on a keyboard
linked to an electronic device are surprised to be told that when
they put their name at the end of the email or other document it is
a binding signature?
What is a signature after all? The courts have always been
willing to accept that any mark made by a person on a document
identifying it as the act of that person will be accepted as a
signature. All sorts of hieroglyphics have been accepted as
signatures, some so undistinctive that they are easily forged.
And don't be fooled by the old-fashioned meaning of the word
'document'. It includes text produced and held on an
Our law caught up with the electronic age in 2002. The
Electronic Communications and Transactions Act gave
communications made by data message the same legal effect as
non-electronic documents. The act relates to emails and data
messages between two parties and to transactions of a commercial or
non-commercial nature. This will include any form of electronic
messaging. It doesn't apply to documents that, by statute,
require signatures such as wills, agreements of sale of land, and
cheques and other bills of exchange. Transactions concluded
electronically by email were given legal recognition.
This would have come as a surprise to the losing party in a
recent case in the supreme court of appeal. The parties were
negotiating cancellation of a contract. The contract said that a
cancellation would not be effective unless it was in writing and
signed by both parties. They exchanged emails confirming that the
parties would "cancel the agreement and walk away". The
one typed his name simply as "Nigel". The other ended his
email "Kind Regards Greg". There was no pen to paper and
no special electronic signature.
The act makes it clear that an agreement reached wholly by data
messages is legally enforceable like any other agreement. A
typewritten name at the foot of an email, used to identify the
sender, is data that is associated with the contents of the body of
the email. Courts take a pragmatic approach. They will look to see
whether the signature fulfils the function of a signature, namely
to confirm the identity of the signatory.
For these reasons, Greg was bound by the cancellation he had
agreed to in the email.
This is one of the most important cases relating to the law of
contract that has come out of the courts recently. Whether you use
one finger or all fingers on the keyboard, your word will be your
bond. That's as it should be. If you want to avoid the
consequences you could not sign your emails or, in a contractual
negotiation, you would say that nothing is binding until it is
physically and not electronically signed by the parties.
The words in the Rubaiyat of the Persian sage Omar Khayyam
written nearly 1 000 years ago (and translated by Edward
FitzGerald) remain as true as ever:
"The Moving Finger writes; and, having writ,
Moves on: nor all your Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all your Tears wash out a Word of it."
Except now the moving finger types.
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