With the vast majority of the population in lockdown, we are facing unprecedented and uncertain times. However, the world continues to turn and with that we’re having to figure out new and different ways of working.

There are documents – contracts, deeds, legal papers, wills and so on – that still need to be signed. Just because the pandemic has caused a temporary standstill doesn’t mean that businesses aren’t continuing to run.

We’re relying on technology more now than ever – and that doesn’t look to change any time soon. With that said, let’s explore the rules and challenges that surround electronic signatures, and how you can implement e-signing in your business.

What is an e-signature?

An e-signature is an electronic version of a handwritten signature. This can take many forms including a name typed at the bottom of an email, a handwritten signature that has been scanned into a computer or photographed, or ticking an ‘I accept’ button on a website form.

English law does not specify that any particular type of electronic signature is adequate for document signing. Instead, a pragmatic approach is accepted with regards to what is accepted as a satisfactory signature. It is generally said that if the person submitting the electronic signature intends to authenticate the document or give validity to the terms they’re agreeing to on a website, then the e-signature can be accepted.

There are a few e-signing platforms that are widely utilised, the most frequently used being DocuSign, AdobeSign and HelloSign.

Can an e-signature be used for court proceedings and processes, and deeds?

Yes, normally an electronic signature is sufficient when it comes to legal proceedings. A PDF copy or even a photographed version of a wet ink signature on an execution page is fine, and so is a signature obtained via an e-signing platform. For documents such as a witness statement, it is possible that a party’s lawyer can certify that the document is approved by the signatory.

Deeds have been a little more difficult in recent years. In 2019, the Law Commission did confirm that an electronic signature can be valid for deeds, although with some absence of

statute or case law, there have been some stakeholders that have shown hesitancy when it comes to recognising electronically signed deeds.

Are there any drawbacks to using e-signatures in contracts?

When it comes to what constitutes a legally binding contract, English law is flexible and adopts a practical approach. The word ‘contract’ does not need to be included at the top of the page, and it doesn’t even need to be in writing.

Of course, disputes can always arise when it comes to an agreement between two parties and that’s why a formal, written contract is still always the best way to ensure that both parties are protected when agreeing to any terms. A verbal or informal contract can only take you so far, and in order for both parties to ensure that they are covered should a disagreement occur, a clear set of terms should be set out clearly and properly incorporated into the contract.

An e-signature has exactly the same validity as a handwritten or ‘wet ink’ signature, and is much easier to obtain in many cases – especially in current times!

There is one key drawback though. Even though an e-signature holds the same legal standing as a wet ink signature, an e-signature cannot be witnessed via video technology such as Zoom, Skype, FaceTime and so on – and, as it goes, neither can a traditional, handwritten one. This clearly raises many logistical issues – especially in today’s climate – and it’s something that the Law Commission has raised and has suggested is looked at in more detail.

When is a witness for a signature required?

Not all signatures have to be witnessed. However, if you are signing something like a mortgage agreement or a will, it is sensible to ensure you have somebody who can attest to the fact that you did indeed sign the document. A neutral third party – i.e. somebody who is not related to either party and who cannot benefit financially or otherwise from the document – should be chosen as your witness, and they must be an adult. They do not have to have read the contract or document – they just have to be physically present at the time you are signing it.

So how can they be physically present at a time of social distancing and lockdown? Your best bet is to ask somebody who isn’t related to you, although it may be acceptable to use a relative who has absolutely nothing to do with the document you’re signing. You could also ask a neighbour.

Ensure that your witness stands two metres away from you as advised by the government, and of course make sure that they can clearly see you signing the document. If a witness signature

is required when using an e-signing platform, ensure that both you and your witness thoroughly wash your hands both before and after signing on the device, and that the device is completely disinfected before, in between and after the two of you have used it to sign the document.

If you have any questions, please feel free to contact us on 020 3476 6751 or by email info@carterbond.co.uk

This note is not a substitute for legal advice. Information may be incorrect or out of date and may not constitute a definitive or complete statement of the law or the legal market in any area. This note is not intended to constitute advice in any specific situation. You should take legal advice in specific situations. All implied warranties and conditions are excluded, to the maximum extent permitted by law.