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Electronic execution: Difference between revisions
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===But does it work, legally?=== | ===But does it work, legally?=== | ||
Cue voluminous, sombre, [[tedious]] monographs on the legal effectiveness in different jurisdictions of electronic signatures. | Cue voluminous, sombre, [[tedious]] monographs on the legal effectiveness in different jurisdictions of electronic signatures.<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 coneyance of real estate, for example, or a deed. | ||
But — unless your [[Financial instrument|instrument]] is a [[deed]] or [[lease]] or has peculiar formal execution requirements — most | But — unless your [[Financial instrument|instrument]] is a [[deed]] or [[lease]] or has such peculiar formal execution requirements — and most [[confirmation]]s and instructions which pass between the operational teams of financial institutions don’t—it really needn’t be that complicated. Generally, digital signatures are fine and, in many respects, ''better'' than a handwritten signature, 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 | 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 thast evidence you wind up having an argument with your counterparty about your [[contract]]. The moment your counterparty ''denies'' signing your contract, 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 counter in front of him, pointing his spittle-flecked fat little fingers at your adversary’s ''signature'' and triumphantly declares, “Well M’Lud, this here unequivocal evidence of the defendant’s agreement says otherwise!” | ||
The question for you is 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? Your answer ought to be, “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, or 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 to you, it will be hard for your client later to claim the contrary. | It doesn’t matter if it is a hand-inked signature scratched on onion skin with a quill and waxen seal, or 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 to you, it will be hard for your client later to claim the contrary. | ||
===The ''contract'' versus the ''written agreement''=== | |||
The [[contract]], ''[[consensus ad idem]]'' is an immaterial thing. It has no physical extension. It does not intrude on the mortal plane. Its best earthly representative is the ''written agreement'', a printed form wherein the parties do their best to set out in full the boundaries of their compact. If they have one of these, and have indicated their consent to it, a court will be disinclined to look beyond “the four corners of the document” when divining the parties commercial intentions. This is in part convenience, in part laziness, but in part the fair assumption that since the parties were bothered to write down the important parts of their agreement, something that they ''didn’t'' write down can't have been important. Since it is suddenly in issue, apparently against all expectation, the benefit of the doubt sides with the paperwork. God is not be your witness, so your written record will have to do. | |||