IS IT OK TO SIGN DIGITALLY?
IS IT OK TO SIGN DIGITALLY? AND THE BEST WAYS TO DO SO
Even today, not everybody seems confident that agreements and contracts could be signed digitally. We’ll try to shed some light on this topic but first a disclaimer: the following does not constitute legal advice and you should always seek competent and professional help from a lawyer!
With this out of our way let’s dive into this topic. The first thing to address is where are you based and which laws and jurisdictions the agreement is governed by.
APPLICABLE LAW AND DISPUTE RESOLUTION
The law that applies to the agreement that you are signing, as well as the jurisdiction that will enforce its terms will affect whether or not you can sign your contracts digitally.
If you are signing something that is regulated by English, European or American (USA) laws, eSignatures are generally accepted and are considered equal to pen-and-paper signatures. But wait, what’s the difference between an electronic signature and a digital signature?
ELECTRONIC SIGNATURE VS. DIGITAL SIGNATURE
Electronic signatures (or eSignatures) allow a person to electronically add a signature to an online contract: they are a digital version of the paper-based method of signing signatures. Digital signatures instead are digital certificates that use algorithms to create a digital fingerprint or a private key unique to a specific document. They represent a different method to sign a document and could be used with or without an electronic signature.
SOME DOCUMENTS CAN’T BE SIGNED ELECTRONICALLY...
E-signatures are normally not used when documents need an extra layer of identification, notarization, or one or more witnesses. Often, these documents involve a greater risk of fraud due to a false or forged signature and may include wills, sworn declarations, powers of attorney, etc., but…
OR CAN THEY?
In 2018 Uk’s commission has suggested that when a signature requires a witness this could be done via a webcam or video link, and in march 2020 the UK government confirmed its agreement with the commission’s conclusions on the fact that, event if the current law already provides for electronic signatures, a specific codification of the law on electronic signatures would improve its accessibility.
IN PRACTICE
In practice you want to (1) ask your lawyer first; (2) include in the agreement a clause that explicitly declares how the agreement could be signed… something along the lines of:
“This Agreement may be executed in one or more counterparts by facsimile or PDF, all of which shall be considered one and the same Agreement, and shall become effective when one or more such counterparts have been signed by each party, through signature or e-signature, and delivered to the other party.”
But (point 1): ask your lawyer first.
CONTACT MATTERS2
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While electronic signature is distinct from digital signature, which I learned from this article, the website provides a thorough description of both. I can now distinguish between digital and electronic signatures.