Beyond ESIGN: Evidentiary Issues - Intent to Sign

Compliance with the e-signature laws is a very basic step in defining an electronic transaction system. Like paper documents, electronically signed documents can become the subject of a dispute. The facts surrounding the signature process must provide enough proof to uphold the transaction in the event of repudiation of an electronically executed contract. Compliance with ESIGN is necessary, but not sufficient. In electronically executed documents, establishing parties' intent to sign can closely mirror that of physically executed documents.

Intent to Sign

An electronic signature is only valid if the signer intends to sign something. In the paper world, a number of conventions are used to establish evidence of intent to sign. Placing a signature at the end of a document, often directly under a block of text that confirms that the parties intend to be bound, is the most common convention. Similar considerations should be made when adopting an electronic signature process.

For example, the signature's purpose may be to simply confirm receipt or review of a document or the accuracy of the document's contents. In the case of an electronic contract, the signature's purpose is to bind the signer contractually to the document's terms. ESIGN and UETA make no distinction between these purposes - the parties are responsible for adopting a method of electronically signing documents (e.g. required disclosures, level of authentication, security, storage, etc.) most appropriate for the intended use.

If disputed, the person attempting to enforce the signature will have the burden of proving the intent to sign the record. In addition to establishing the signature's purpose, the party seeking to enforce the signature will want to offer evidence that a reasonable person would have believed he was signing the record. One method of establishing a reasonableness argument in support of a signer's intent to be bound is the creation of a signing “ceremony” closely resembling the paper signing process.

Thinking about the fundamental purpose and function of signatures and contract execution (intent) can help ensure that electronic signatures and online contract execution processes encapsulate the fundamentals of documenting agreement between parties.

DocuSign's electronic signature process takes signers through several screens including the adoption of an electronic signature, enables them to place their signatures on the dotted line and allows initials where needed. This process closely mirrors that of physically executed documents and creates an ESIGN compliant contract.