Commonly, where a document requires signature for valid legal execution, a signature is where the executing party signs their name (or initials and surname) in wet-ink on the document in the appropriate place. However, in the current lockdown, it might be difficult for the executing party to sign with their wet-ink signature for example; the executing party does not have access to a printer. For more details on the formalities and options for virtual execution, please click here.
On simple contracts, where a signature is required, the executing party can provide their authority to their solicitors to sign the document on their behalf as an agent. This authority can be provided both formally through a power of attorney, or informally through a letter or email. It can also be provided verbally, however, for evidential reasons this is not advised, and is not considered best practice. It should be noted that signing the documents as an agent is not permitted for deeds, as they are required to be signed by the party themselves.
A further alternative is an electronic signature. Although there is no legislative provision in effect which deals with electronic signatures, and they are not appropriate in all circumstances, any doubts about their effectiveness were dispelled by the Law Commission’s 2019 report on electronic execution. This concludes that an electronic signature is capable, in law, of being used to execute a document (including a deed) provided that the person signing the document intends to authenticate the document, and any other formalities to execute that document are complied with, such as the signature being witnessed (for further details regarding options for obtaining a witness in the current circumstances, please click here).
In 2018 the Law Commission concluded that a witness is capable of attesting an executing party’s signature even if the signature is electronic, subsequently they state that this can occur by the witness physically watching the party apply their electronic signature to the document, then apply their own electronic signature to the document in attestation of the same.
Just as the common “signature” is defined widely, so too is an electronic signature. The test of function over form, originated in the case of Caton for manual signatures, has also been adopted for electronic signatures and promulgated throughout case law. Electronic signatures can therefore take a variety of forms including the following:
- A scanned manuscript signature.
- A biodynamic manual signature such as using a finger or stylus to sign their name on the document via touch screen.
- Typing the signatory’s name into the electronic document (including initials)
- Clicking an icon on a website.
- Signing through an e-signing platform.
The question is whether the signatory intended to authenticate the document i.e. did the signatory wish to be bound by the terms. It is not so concerned with the form of the signature provided an intention to authenticate the document can be demonstrated.
It should be noted, that when considering this intention, signing the document with a stylus or through an e-signing platform will hold greater evidential weight and is less vulnerable to fraud. Authority and capacity of the person signing the document should also be considered before using an electronic signature and in the case of corporate bodies, their articles of association should be consulted to ensure that there is nothing to prohibit electronic signatures.
For an overview of how we will still be able to complete your transaction during these unprecedented times, please click here or contact our commercial team by emailing email@example.com or call 01202 786183.