ABSTRACT
Most professionals favor substance over form. Yet, with respect to form itself, more and more favor electronic form over substantive media and signatures. Companies, consumers, and governments increasingly use electronic communications, documents, and signatures instead of ink and paper. The COVID-19 pandemic has further accelerated an existing shift to digitization. Yet, many remain unsure about the legality or effectiveness of different forms of electronic signatures and find laws on the subject confusing.
Transactions, documents, and signatures are separate concepts. Transactions and other legally relevant actions, decisions, and declarations can be recorded in documents and effectuated with signatures. Documents and signatures can be created or copied electronically or in other formats. Transactions, actions, decisions, and declarations on the other hand exist in the abstract and independent of the electronic or other form in which they may be documented or signed.
In practice, people commonly ask whether electronic signatures are legal. But, the more relevant questions to ask are whether electronic signatures are effective and binding; whether they meet statutory form requirements; whether they protect interests as well as handwritten signatures on paper documents; and whether one is required to create, obtain, or retain paper documents with handwritten signatures in addition to electronic records and signatures. To better answer these and other questions, one has to consult not only newer laws specifically regulating electronic signatures and documents, but also older laws prescribing form requirements. Many older laws do not contemplate modern technologies and therefore do not give clear answers as to whether one can satisfy form requirements electronically …
Lothar Determann, Electronic Form Over Substance: eSignature Laws Need Upgrades (2021) 72 Hastings Law Journal 1385-1452.
First posted 2021-05-26 08:00:10
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