There are so many ways to sign a contract today that you can get lost in the digital shuffle.
The original handwritten signature on paper is only one way to consent in writing to a contract. There are other forms of “signatures”, all of which may be valid on technology-based documents, and all of which have their own particularities. In general, the validity of a signature requires two main elements: (i) the “signature” or “mark” is the expression of the consent of the person affixing it; and (ii) there is a link between the signatory and the document being signed. If the document is a technology-based document and not “paper”, there is a third element added, namely, that the integrity of the document was maintained since the signature was affixed.
1. Scanned or photocopied signature
This is actually not an electronic signature but the same as a handwritten signature. What you have is an electronically scanned version (being the equivalent of a photocopy) of the document containing the handwritten signature. It is a good practice to obtain the original, as you would need the best evidence available if the signature is contested in a court proceeding. If the original is not obtained, keeping a copy of the email, text or transmission that comes from the person signing the document is also good practice. This way you can link the person to the document directly.
2. Electronic user generated signature
Certain software offers the ability to electronically “sign” a document by affixing a mark. The mark can be created by the user and affixed to the document to indicate the user’s consent. This can be termed a “user generated signature”. While this is an acceptable form of signature, it will require some link between the person and the document. It is recommended to keep the email or the file transmitting the signed document. If the person who transmits the document is not the signatory, then the link between the signatory and the document will be broken, and additional evidence will be needed to establish this link and the validity of the signature.
3. Digital certificated signature
This type of electronic signature is created by a third party entity certifying the identity and mark. That entity can be a government approved PKI cryptography type or a corporate service, such as DocuSign or e-Signlive/OneSpan. It is a more secure way to sign a document, as this digital signature has a certificate linking the person’s signature to his/her identity and an audit trail to link it to the document. It is less important in this case to keep the accompanying email or transmission file. This method is recommended if your transaction occurs in a cloud, as you may not be able to link the person to the document.
There are a myriad of other issues around technology-based documents. As such, for contract administrators, it is a good idea to adopt some best practices and to review them with counsel.
By Sam Coppola and Jon Mechanic