Why is it that people who do all their business on a keyboard linked to an electronic device are surprised to be told that when they put their name at the end of the email or other document it is a binding signature?
What is a signature after all? The courts have always been willing to accept that any mark made by a person on a document identifying it as the act of that person will be accepted as a signature. All sorts of hieroglyphics have been accepted as signatures, some so undistinctive that they are easily forged.
And don't be fooled by the old-fashioned meaning of the word 'document'. It includes text produced and held on an electronic device.
Our law caught up with the electronic age in 2002. The Electronic Communications and Transactions Act gave communications made by data message the same legal effect as non-electronic documents. The act relates to emails and data messages between two parties and to transactions of a commercial or non-commercial nature. This will include any form of electronic messaging. It doesn't apply to documents that, by statute, require signatures such as wills, agreements of sale of land, and cheques and other bills of exchange. Transactions concluded electronically by email were given legal recognition.
This would have come as a surprise to the losing party in a recent case in the supreme court of appeal. The parties were negotiating cancellation of a contract. The contract said that a cancellation would not be effective unless it was in writing and signed by both parties. They exchanged emails confirming that the parties would "cancel the agreement and walk away". The one typed his name simply as "Nigel". The other ended his email "Kind Regards Greg". There was no pen to paper and no special electronic signature.
The act makes it clear that an agreement reached wholly by data messages is legally enforceable like any other agreement. A typewritten name at the foot of an email, used to identify the sender, is data that is associated with the contents of the body of the email. Courts take a pragmatic approach. They will look to see whether the signature fulfils the function of a signature, namely to confirm the identity of the signatory.
For these reasons, Greg was bound by the cancellation he had agreed to in the email.
This is one of the most important cases relating to the law of contract that has come out of the courts recently. Whether you use one finger or all fingers on the keyboard, your word will be your bond. That's as it should be. If you want to avoid the consequences you could not sign your emails or, in a contractual negotiation, you would say that nothing is binding until it is physically and not electronically signed by the parties.
The words in the Rubaiyat of the Persian sage Omar Khayyam written nearly 1 000 years ago (and translated by Edward FitzGerald) remain as true as ever:
"The Moving Finger writes; and, having writ,
Moves on: nor all your Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all your Tears wash out a Word of it."
Except now the moving finger types.
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