Agreement By WhatsApp – What Is A Signature?

The English High Court has again been called upon to consider the validity and legal impact of dealings conducted via WhatsApp.

Background

Maxine Reid-Roberts & Anor v Hsiao Mei-Lin & Anor was a bankruptcy case, brought about in part due to a contested divorce and the subsequent division of assets. The divorcing couple were Mr Gudmundsson and Ms Lin. Following their separation, Mr Gudmundsson had declared bankruptcy. The trustees in bankruptcy (the Trustees) had applied for an order for immediate possession and permission for sale of the former matrimonial home (the Property), in which Ms Lin still resided with their children.

At first instance, the court held that Mr Gudmundsson and Ms Lin each held 50% of the Property. Given Mr Gudmundsson's bankruptcy, this meant that his 50% fell under the control of the Trustees. The Court therefore ordered Ms Lin to deliver up the Property with vacant possession by 2032 so that it could be sold to meet Mr Gudmundsson's debts. The Trustees appealed this decision, arguing that the timeframe was too long.

Ms Lin cross-appealed. It was her case that Mr Gudmundsson had disposed of his beneficial interest in the Property to her prior to his bankruptcy, and so the Deputy Judge was wrong to find that she and Mr Gudmundsson held 50% each, and she could not be ordered to deliver it up to meet Mr Gudmondsson's debts. It is this cross-appeal that focussed, in part, on the legal effect of some WhatsApp messages.

Disposition by WhatsApp – what amounts to "signed writing"?

WhatsApp is one of the most commonly used messaging platforms in the world. It is to be expected, therefore, that people use it to negotiate the terms of their agreements. But it can still surprise people that a relatively informal means of communication such as this can be used to reach legally binding agreements. For example, we have previously written about a case in which valuable football broadcast rights were contracted out in an agreement formed via WhatsApp and email.

During the course of their divorce negotiations, Mr Gudmundsson and Ms Lin communicated over WhatsApp. In December 2018, they exchanged the following messages:

Mr Gudmundsson: "I suggest that the responsibility of taking care of the kids goes to u 100%, then I can sign over my share of southcote road to u without any complications as I don't need any accommodation in London."

Mr Gudmundsson:"Please let me know that u r happy with this and we can then close the financial part of the divorce this week."

Ms Lin: "with some monthly maintenance then ok."

By these messages, Ms Lin argued that Mr Gudmundsson had disposed of his beneficial interest in the Property, transferring it over to her immediately. The Property, therefore, could not fall into his estate for the purposes of his bankruptcy because he had no interest in it.

There were two questions to decide on the impact of these messages¹:

• Did Mr Gudmundsson's messages indicate an intention immediately to dispose of his interest in the Property to Ms Lin?
• If so, did this disposal meet the requirements of the Law of Property Act 1925 s.53(1) which requires the disposal of an interest in land to be by signed writing.

The judge found that the messages did not indicate an intention to dispose of Mr Gudmundsson's interest in the Property. They formed part of negotiations but indicated only an intention that he would dispose of his interest in the future as part of the divorce.

However, in case he was wrong about this, the judge also considered the second question – were the WhatsApps "signed writing" for the purposes of s.53(1) LPA? In answering the question, albeit obiter, the judge provided an overview of the law on what amounts to a signature in modern electronic documents.

Ms Lin had argued that Mr Gudmundsson's name appeared in the header of the exchanges and that this was sufficient to prove that he had, in effect, put his name to them. The judge did not agree.

The principle distilled by the judge from prior case law was that to be a "signature" for the purposes of the LPA, there needed to be an intention by the signing party to authenticate the content of document. The fact that a signature is applied automatically does not necessarily mean that it is not valid for these purposes. For example, one can set up an email signature to be applied automatically to the end of emails, and this is capable of demonstrating the requisite intention to authenticate emails sent under that rule. By contrast, the presence of an email address in the automated header to an email, which is inserted by the email server or similar process, is not a signature for these purposes.

In this instance the name in the chat header displayed only what Ms Lin had saved Mr Gudmundsson as in her contacts. Mr Gudmundsson had no part to play in this, and the appearance of his name was simply part of WhatsApp's interface for the chat as a whole. The name could not be ascribed to any particular message (for example, it presumably appeared at the top of the chat before the messages proposing to give up Mr Gudmondsson's share of the Property were sent), nor did it evidence Mr Gudmundsson's intention to sign, as he did not do anything directly to cause his name to be written there.

This is not to say, however, that a WhatsApp message could not amount to signed writing for the purposes of the LPA. Although the judgment does not specifically address the issue in detail, it can be assumed that signing your name after a particular message could satisfy the requirements under the LPA and so care should be taken to ensure that this is avoided if the sender does not intend for the message to be binding. The Court acknowledged this, suggesting that "it might technically be possible for a WhatsApp message to have the requisite dispositive intent"to satisfy the requirements under the LPA. However, the judge considered that the context of a relatively high-value disposition of a residential property suggested it was not the intention of the parties that a binding transaction would be reached over WhatsApp.

Comment

It should be borne in mind that this case was decided in the context of the particular requirements for disposition of an interest in land, although, as above, the Court had no trouble accepting that it may be possible for land to be disposed of in such a way.

The Court did not address the circumstances surrounding an individual's display name, which is entered by the sender and often appears on a phone's lock screen when a message is received (although notably does not necessarily appear when the chat itself is entered). In line with this judgment, it could reasonably be argued that this is an active step by the sender to ascribe their name to the chat, although given this was not addressed, it remains an untested point.

Recalling the lessons of DAZN Ltd v Coupang Corp, and the similar case of Jaevee Homes Ltd v Fincham [2025] EWHC 942 (TCC), in which a WhatsApp exchange created a binding contract for demolition works, simple contracts can certainly be entered into via WhatsApp as signed writing is not required. The standard test for a contract in English law will apply – has there been an offer, acceptance and consideration on all the essential terms? Indeed, in different circumstances (if Mr Gudmundsson had signed his name), it seems that even under the LPA there could well have been a binding transaction here.

This is an area of contract law that is fast developing. It is clear that WhatsApp can serve to support the entering into of a contract, but parties who wish to create binding obligations by message should nevertheless make sure to use unequivocal language and a deliberate sign-off. Equally, parties who do not wish to be bound should make this clear in their messages.

Footnote

1. This article does not consider the additional question before the court, whether such a disposal was capable of taking immediate effect in the particular context of divorce proceedings, where the court must sanction the final settlement.

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