Classification of Law
eSignature Legality Summary
Under English law, a written signature is not necessarily required for a valid contract - contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document. Case law, including the decision of the Court of Appeal in Golden Ocean Group v Salgaocar Mining Industries, specifically confirms that contracts cannot be denied enforceability merely because they are concluded electronically. To prove a valid contract, parties sometimes have to present evidence in court. Digital transaction management solutions can provide electronic records that are admissible in evidence under s7(1) Electronic Communications Act 2000 ("ECA 2000"), to support the existence, authenticity and valid acceptance of a contract. However only a Qualified Electronic Signature shall have the equivalent legal effect of a handwritten signature.
In addition, Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (the “eIDAS Regulation”) came into force on 1 July 2016. The eIDAS Regulation repealed and replaced the e-Signatures Directive (1999/93/EC) and is directly applicable in the 28 member countries of the European Union.
The eIDAS Regulation is technology neutral and defines three types of electronic signature (SES, AES, QES). Article 25(1) provides that an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or does not meet the requirements of a QES. Articles 25(2) and (3) give a QES the same legal effect as a handwritten signature and ensure that a QES recognized in one Member State of the EU is also recognized in other Member States. Finally, Recital 49 allows national law to set requirements regarding which type of electronic signature may be required in which circumstances.
Use Cases for Standard Electronic Signature (SES)
Use cases where an SES is typically appropriate include:
- certain HR documents, such as employment contracts, benefits paperwork and other new employee onboarding processes
- commercial agreements between corporate entities, including NDAs, procurement documents, sales agreements
- consumer agreements, including new retail account opening documents
- certain real estate documents, including real estate sale and purchase contracts, leases under 3 years and any other property documents usually signed under hand (e.g. not as a deed) and where such documents are not to be lodged at the Land Registry, or registrable
- certain securitization documents, such as a guarantee
Use Cases That Are Not Typically Appropriate for Electronic Signatures or Digital Transaction Management
Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.
- Handwritten – various lease documents, including leases of 3+ years, deed of variation of lease, lease surrenders, and deeds ancillary to leases (e.g. rent deposit deeds, licenses to alter, assign or underlet)
- Handwritten – real property documents submitted for registration with Land Registry and Land Charges Registry, including deed of transfer of title, application for adverse possession, legal mortgage/charge, release of legal mortgage/charge, deed of easement, deeds of variation
- Handwritten – documents for HM Revenue and Customs, where stamp duty is payable
- Handwritten - some documents such as company accounts to be registered with Companies House outside its web-filing service
- Handwritten – various family law documents, including prenuptial agreements, separation agreements, deeds of variation, deed of disclaimer
 An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using means that are under the signatory’s sole control; and (d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.
 A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as ‘qualified’ by either that government or a party contracted by that government.
Local Technology Standards
As part of the European Union, the UK defines different classes of electronic signatures, as specified in Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (eIDAS Regulation), including qualified electronic signatures in the local Electronic Signature Regulations ("ECA 2000"). A Qualified Electronic Signature is automatically granted the equivalent legal effect of a handwritten signature. Where a Qualified Electronic Seal is used (by legal persons such as corporate entities) the integrity of the data and correctness of the origin of the data shall be presumed. The enforceability or validity of a document signed by electronic signature, regardless of technology or certification, depend on the evidence associated with a particular signature (or seal).
DISCLAIMER: The information on this site is for general information purposes only. You use this information at your own risk. For legal advice or representation, contact a licensed attorney in your area. Laws may change quickly, so DocuSign, Inc. cannot guarantee that all the information on this form is current or correct. DOCUSIGN DOES NOT GIVE ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY, OR COMPLETENESS OF THIS INFORMATION. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER DOCUSIGN, NOR ITS AGENTS, OFFICERS, EMPLOYEES, OR AFFILIATES, ARE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OR PROFITS, OR BUSINESS INTERRUPTION), EVEN IF DOCUSIGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT, ARISING IN ANY WAY OUT OF THE USE OF OR INABILITY TO USE THIS INFORMATION
Last updated: October 26, 2018
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