Electronic execution: Difference between revisions

{{a|g|[[File:Fountain pen writing (literacy).jpg|450px|frameless|center]]}}Being the process of gathering evidence of [[offer]] and [[acceptance]] of a [[contract]] using digital authentication technology. ''Not'' just pasting a jpeg of your scanned signature onto a .pdf. <ref>That, by the way, is ''une borné idée''.</rfef>

The unglamorous but important topic of [[electronic execution]] usually gets swamped by modish [[A.I.]] [[yogababble]] — though old [[Jolly Contrarian|Mystic Meg]] here predicts that might change in 2020 with the planet’s entire [[Negotiator|negotiation capability]] [[Coronavirus|sequestered in box rooms and attics]], without any other means of executing legal contracts.  

For a properly-implemented electronic execution programme will not just keep your [[ISDA ninja]]s safe from [[Coronavirus|pandemic]], but will yield productivity and data control benefits which will exceed all reasonable expectation<ref>Until, after six months, everyone just takes them for granted, like usual.</ref>. This, [[Jolly Contrarian|Mystic Meg]] feels, will be far more [[transformative]] than a slew of useless [[chatbot]]s or for that matter the forthcoming [[Singularity]], in which said useless [[chatbot|chatbots]] are expected to take over and convert we weeping mortal [[Meatsack|fleshsacks]] into battery juice.  

Electronic execution is just not as ''sexy''.

Now before allaying the usual paranoid fears about [[electronic execution]], a brief, self-indulgent foray into the [[common law]] [[jurisprudence]] of the [[contract]] itself.

TL;DR: Yes.

But cue voluminous, [[tedious]] monographs on its legal effectiveness in different jurisdictions and peculiar instances.<ref>The [https://www.lawcom.gov.uk/project/electronic-execution-of-documents/ UK Law Commission], as recently as March 2020, for example.</ref> These are mainly confined to the specific issues arising where a local jurisdiction prescribes some form to the way one enters into a special ''type'' of contract — one relating to the conveyance of real estate, for example, or a [[deed]].

So  — unless your [[Financial instrument|instrument]] is a [[deed]] or [[lease]] or has such peculiar formal execution requirements — and most [[confirmation]]s, instructions and even master trading agreements which pass between the operational teams of financial institutions won’t<ref>Exception: anything signed as a [[deed]]: a [[security financial collateral arrangement]], for example, or a [[guarantee]] or a master agreement building a security interest in, such as a [[prime brokerage agreement]]</ref>  — it needn’t be that complicated. Generally, digital signatures are fine and, in many respects, ''better'' than handwritten signatures, especially a scanned, emailed [[facsimile]] of a handwritten signature which could easily have been forged.  

For a signature – ''any'' signature — is simply a means of gathering and recording evidence and that your counterparty agreed to your transaction or gave the instruction that your records say it did. It is an [[audit]] trail. It is [[due diligence]]. You will only need that evidence should you wind up arguing with your counterparty about your [[contract]]. The moment your counterparty ''denies'' signing it, or confabulates a claim that the terms of your bargain where different from the ones written down on this piece of paper — that is the moment where your counsel, {{jerrold}} pulls out your agreement, slaps it on the registrar’s desk, pointing his spittle-flecked fat little fingers at your adversary’s ''signature'' and triumphantly declares, “Well M’Lud, ''this here'' is unequivocal evidence of the defendant’s agreement to the contract says otherwise!”

So how would you feel were it not a dog-eared contract with a hastily-appended scribble on it, but a two-factor authenticated, time-stamped, [[distributed ledger]]-registered digital record of your counterparty’s authorised officer’s assent? Most well adjusted merchants would say, “rather better”.<ref>Or will be until you learn about the courts’ Luddite comprehension of [[Greenclose v National Westminster Bank plc - Case Note|email]].</ref>

It doesn’t matter if it is a hand-inked signature scratched on onion skin with a quill and waxen seal, a two-factor-authenticated digital signature or, for that matter, a series of unambiguous semaphore messages from a person atop a distant hill whom you sincerely and plausibly believe to be your client. If it ''is'' your client, and you have a record of its assent, however communicated, it will be hard for your client later to claim the contrary.