Report on Electronic Execution of Documents
According to the Law Commission, there were still uncertainties regarding the legal validity of electronic signatures and their enforceability. The Law Commission provided a detailed explanation of how electronic signatures might fit in the current legal framework that governs commercial and consumer documents. This included deeds but excluded wills and registered dispositions of land under the Land Registration Act 2002.
Users were unsure about the enforceability of electronic signature solutions due to the lack of legislation and legal advice. These concerns were magnified in cross-border contracts, such as those with the European Union, and regarding authentication and data protection.
Current Law on Electronic Signatures in Documents
The Law Commission reported that electronic signature certificate authority can be used to execute legal documents, such as deeds. The Law Commission stated that an electronic signature can be used to execute important documents, including deeds and legal questions. However, it must be signed by the intended signer and all formalities related to execution are met. Electronic signature fields and management of employment and tenancy contracts and other contracts that don't require complex negotiation are possible.
The electronic document or online form can also be admissible in court proceedings as evidence. They can be used to prove identity or the intent to authenticate a contract. The courts will consider all circumstances when deciding whether a digital signature is authenticating. The law will conclude the intention of electronic sound to authenticate if a reasonable person, not just those who signed the contract, considers that such was the intent of the person's actions.
This approach applies to non-electronic signings. The courts consider that signing with an "X", initials, stamps or a mark is a description of the traditional signature image. However, their identity must be sufficiently clear i.e. Signing with an 'X', initials, stamps, a mark, and printing a name are all valid options. These handwritten signature approaches were examined by the Law Commission. They concluded that electronic forms used on online digital documents that are equivalent to the above examples are likely to get recognized by a court. There is no principle basis to believe that electronically signing a digital certificate document with an X is less legal framework than physically signing it.
Deeds and land, wills
Due to the witnessing quick links requirements, deeds are different from contracts. Although the Law Commission accepted that deeds can be signed electronically (Freshfield and Reed), deeds must be signed in person by a witness who attests paper documents to the signature due to their unique nature. The Law Commission stated that deeds needed to be reviewed not only to determine their existence but also to improve the process of signing and the procedures for deeds in order to conform to the e-sign framework. The Government responded to the Law Commission by agreeing to legal advice that a wider review of the law regarding deeds was necessary. This task will be assigned to the Law Commission.
Land Registry is responsible for real estate registering land and property ownership in England and Wales. They have published a guidance note about the use of e-signatures and deeds. It states that electronic transactions of registration transfers and other documents will be accepted provided that their requirements (such as mutual consent to the use of the e-signature platform) are met. Due to the Covid-19 pandemic and self-isolation, the Government recognized that execution of wills, particularly witnessing requirements, became difficult. Therefore, the Wills Act 1837 was modified to allow for virtual witnessing and to permit electronic signatures. This amendment will be in effect until 31 January 2022.
The situation is less clear than for land registration or wills. Common law, for agreements made without consideration, requires a deed. Although the Law Commission stated that electronic signatures can be witnessed in principle, it acknowledged that current law doesn't allow for witnessing other than physical presence in the entire process of signature request. We can draw the conclusion that, although electronic signatures are possible, witnessing requirements (other than those mentioned above in relation to land ownership or wills) will need to be met in person to trust services until law reform is implemented in PDF Document.