When are electronic signatures legally binding?
U.S. federal law recognizes electronic signatures as being valid as long as they comply with certain standards. These are:
- Intent to sign: Just as with traditional signatures, electronic signatures are not legally binding if either party didn't intend to adopt the terms associated with the signature. Basically, one party can't "trick" the other party into signing something they had no intention to sign.
- Consent to electronic transaction: Each party must agree to use electronic signatures and records after receiving specific disclosures about the process (e.g., "By clicking here, you agree to the terms of this document.")
- Association of electronic signature with the agreement or record: Any electronic signature must be directly associated with the record being signed
- Clear attribution: The signature should be clearly attributable to the person who made it.
- Retention of records: All parties to an electronically-signed contract or statement must have access to its records and be able to accurately reproduce the document(s) for reference.
What are the laws that govern electronic signatures?
There are two laws governing electronic signatures in the United States:
- Uniform Electronic Transactions Act (UETA): A law that serves as a model for states to pass if they so choose.
- Electronic Signature in Global and National Commerce (ESIGN) Act: A federal law that creates a nationwide standard.
The UETA was adopted by 49 states and the District of Columbia and establishes the legality of electronic signatures as being just as valid as ink-and-paper signatures. New York chose not to adopt the UETA, but they have their own statutes recognizing electronic signatures. UETA only covers business, commercial, and governmental matters. This excludes wills, trusts, family law matters, and many other important legal procedures.
The ESIGN Act is similar to UETA in that it affirms the legal validity of electronic signatures. The requirements for an electronic signature to be legally binding are governed by this law. The ESIGN Act is also limited to business, commercial, and governmental matters. This means ink signatures may still be required for:
- Estate and family law matters.
- Court orders, pleadings, motions, and other court documents.
- Notices of foreclosure, eviction, or repossession.
- Cancellation notices, such as utilities or insurance benefits.
- Safety recall notices.
Are electronic signatures legally binding outside of the United States?
It depends on the country. Some countries have more flexible and open-ended electronic signature laws, while others have more rigid requirements.
Federal and state laws in the United States do not require the use of any particular technology, nor do comparable laws in Canada, the UK, and Australia. But members of the EU, South Korea, and China have adopted laws that—in addition to defining the types of regulations found in the ESIGN Act—specifically create a list of approved technologies and processes.
This does not necessarily mean that you need to worry about using a specific technology or process for electronic signatures if, for example, one of the signees is based in Europe or China. Most of these laws allow private parties to enter into an electronic agreement using the technology and process of their choice.
But some countries are more particular about the technology and methods used for electronic signatures, including Brazil, India, and Israel. In these countries, electronic signatures that do not comply with the mandated technology or process may not be legally binding. If you have questions about your specific situation, it may be a good idea to talk to a lawyer.
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This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.