UK: Understanding Electronic Signatures

Last Updated: 9 November 2018
Article by David Lowe

What are E-signatures, how do they work and what does best practice look like? David Lowe shares his insight into this important topic and provides practical guidance on using E-signatures to manage your day-to-day commercial contracts.


Hi, I am David Lowe and I am one of the partners behind Thinkhouse. I am also a partner in our commercial contracts team and I am going to talk today about electronic signatures.

Electronic signatures have actually been around a long time, in fact a PDF signature is actually an electronic signature and we have all completed contracts using PDF, or back in the mists of time faxed signatures.

So why is it on the agenda now? Well a number of reasons, first of all we had a new European Regulation in 2016 which sought to harmonise the rules in electronic signatures across Europe, and that led to various software houses promoting their products to support e-signatures within organisations; we have also had a practice note from the Law Society on how we, as lawyers, should deal with electronic signatures; and most recently in August 2018 we had a Law Commission consultation about electronic signatures. Around all of that is a sense of unease as we are starting to see electronic signatures becoming more and more embedded within organisations, being used for bigger and bigger transactions, and I think many lawyers are starting to wonder just how does this work? Is it legal?

With electronic signatures there are two key issues. One is the legal requirements and the second is the broader issues of signatures such as, if the contract is authentic. I am going to deal first with legal requirements.

The legal requirements turn around the formality requirements of any document under English Law. The default position is that a contract does not need to be in writing and it does not need to be signed, you can create a contract under English Law verbally. However it is not a very good idea to do that because it is then difficult to demonstrate what the contract says, you need to have a recording of it to demonstrate absolutely what was in that contract and that is why we like contracts to be in writing. But there is no legal requirement for a contract to be in writing, at least that is the case under English Law and a big word of warning here is that other laws around the world may have different requirements. There have been cases which have said that an English Law contract with a Swiss company, where that Swiss company has not complied with its local law requirements is unenforceable, so always be careful to look out for the foreign law impact. I said that the default position does not need to be in writing and does not need to be signed but of course there are a list of exceptions. Deeds are obviously an exception, a deed needs to be in writing it needs to be signed and sometimes needs to be witnessed. Property documents often need to be in writing and signed, as do guarantees, stop transfers, consumer credit and intellectual property documents.

So if something needs to be in writing or signed or witnessed, how does that work in English Law? Well the legal obligations about what needs to be in writing is set out the Interpretation Act 1978 and that said as long as you can reproduce the words in a visible form that is writing. So basically a document that you can look at on screen is in writing, we do not need any enabling legislations such as the EU legislation to confirm that and that has been upheld by various cases and the Law Commission in its consultation papers says electronic documents viewed on a screen will satisfy the requirement for writing. Therefore there is no legal debate under English law about whether a document viewed on screen is in writing - it is. However, signed has no statutory meaning in English Law, there is no Interpretation Act definition of what we mean by signed. When you look at the case law which goes back hundreds of years a signature can be simply an "X" or somebody's initials or a stamp of a hand written signature or even just printing a signature. English Law is very flexible about what a signature means and there are many cases now about how people can sign using an email. So for example there is a case called Carrera Fernandez which was a guarantee where the person could type their name into the email and the Court said that typing of a name was a signature and therefore it complied with the obligations of the statute of frauds which requires a guarantee to be in writing and signed. The fact it was in an email which could be seen on a screen meant it was in writing so you ticked that box, the fact that there was somebody who had typed their name is considered a signature, so it ticked that box and therefore it formed a binding guarantee.

There has been a case under the consumer credit act where the question was by clicking "I accept" does that create a binding signature? The Courts were quick to say yes. It does not need a manuscript flourish of a pen to be a signature, clicking "I accept" that is itself a signature and so the Law Commission in its consultation recognises that electronic signatures satisfy the statutory requirements for a signature so long as there is evidence of an intention to authenticate the document. So the fact that you actively typed your name into the email is sufficient for there to be an intention to authenticate and will create a binding signature.

I should at this point touch on the European regulation eIDAS which is the Regulation Electronic Identification and Trust Services or Electronic Transactions. What that did is to recognise that an electronic signature can be admitted to a court anywhere in Europe as a signature. So the fact that a local law might say it has to be a real signature, a wet ink signature, to be produced in court has been harmonised away and that has always been the case in English Law. It does then set a framework for more complex signatures, digital signatures that use encryption allowing for a framework across Europe for digital signatures to be enforceable. But because under English law we do not have much in the way of formality requirements those electronic digital signatures that have been promoted by the EU have not had much penetration.

So we have talked about what is writing and how you can do that on a document on screen, I have talked about signature about how typing your name in an email can be a signature, clicking "I accept" is a signature. The third one is witnessed, some deeds, particularly where it is an individual, need to be witnessed. So there are two key questions here:

  1. Is it actually possible to witness an electronic signature? Can I witness your signature if I stood next to you as you typed your name into the email? Would that be sufficient?
  2. Does the witness need to be physically with the signatory? Do I need to actually be standing next to you as you read the document and type your name in or could I watch you through a video conference?
  3. There is no case law on this area so it is not actually clear what the requirements are for witnessing. The Law Commission thinks that it is perfectly possible to witness an electronic signature if I am stood next to you as you type your name into the email then I can witness your signature, I have watched you type it in and they are comfortable with that. But the Law Commission is not sure whether I could do that via a video conference so I need to be physically present for it to work.
  4. The last comment though is just because you have got something that is in writing and signed electronically and therefore should be legally binding it does not necessarily mean it is effective. If you have got to go and register that document with someone you have also got to comply with their rules so, for example, in the UK we have the Land Registry where you would need to take property documents to be registered. At the moment the Land Registry requires wet ink signatures and therefore is not open to electronic signatures, but other registers such as Companies House are open to them. So if your document is going to need to be registered after it has been signed make sure you know the requirements of that register to ensure that your signature will work.

We talked about the legal requirements for electronic documents and electronic signatures and how they should be perfectly possible under English law the only question mark really is around property documents which is the Land Registry and around witnessing because of the uncertainty as to whether you can witness remotely. But that is not the whole story.

When we sign documents it is not just about fulfilling the legal requirements, it is about authenticating the document. If a document has been signed then you have got more confidence that is the final version. So in some years' time when you are looking for what was the final version of this agreement, the signed version is telling you that this is the probably the final version. Also it authenticates the document in terms and helps guard against forgery, it also helps give you a sense of authority. If you require it to be signed by a director then you can check at Companies House whether that person is indeed a director and if you are comfortable with that signatory, and having a signature is a good way of helping caution a person signing. This is an important document, it has got legally binding obligations, so important that you have been asked to sign it and it just gives you pause for thought, am I comfortable about making this commitment? So, you need to bear in mind those broader requirements for signatures in your own processes. So do you have the authority levels and the systems to support signatures within your organisation? Do you have appropriate measures to make sure only an authorised signatory signs a document? So if you are looking at an e-signature system bear in mind you need to think through all of those processes. What are the authority levels? How do you check on the counterparty? Do you do a credit check? How do you create the contract? When is it signed internally? You need to have straightened all of that out before you start considering an e-signature system. Otherwise you are going to simply outsource a problem, and when you outsource a problem you do not get rid of it, it will definitely come back to you as a problem.

Of course buying an e-signature system is just like buying any IT system, so any of the issues you would normally consider with an IT system you should consider. Can it work on mobile phones? Is it on-site or is it in the cloud. How does it work with data privacy? It is no different to any other IT system.

The final comments to flag, the Law Commission consultation that was issued in August 2018, they are looking for responses by 23 November. What they are looking for is to see if the world at large agrees with their views on electronic documents/electronic signatures. But they have also asked questions about witnessing, should we scrap witnessing, should we scrap witnesses in contracts? Should we allow remote witnessing? In fact should the whole law on deeds be reviewed? Do we really need deeds anymore? Should there be an industry working group to support electronic signatures?

If you have got any views on those subjects then you should certainly be looking to respond to the Law Commission consultation.

Thank you.

Read the original article on

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions