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How to eSign a document: eSignature legality for Communications & Media in India

welcome back to rayman and raymond legal insights we continue to look at contracts within the e-commerce landscape with urgency and time constraints we find that e-commerce is becoming a norm with the need to execute speedy contracts whilst ensuring it is still legally binding the covert 19 lockdown regulations and the disaster management act has left businesses digitizing more than ever today we look at this and the validity of eSignatures so let's explore what the options are for parties including contracts during these times contracts normally require three key formalities one the contract must be in the written form two the parties must sign the contract and three a third party must authenticate the contract why these formalities crucial well for five simple reasons namely one legal certainty which is provided by writing 2 identification 3 attribution 4 ascent and 5 authentication provided by the signature the formalities may be required either by statute or by the parties themselves the general rule in south african law is that no formalities are required for the conclusion of a valid and binding agreement agreements can therefore be concluded by means of communication which sufficiently indicates the intention of the parties concerned to be bound these communications can be expressed or implicit and consists of the spoken word writing or even conduct they are however two broad exceptions the first the formalities that are prescribed by the law a few south african laws require formalities for certain types of agreements or communications for instance the alienation of land act requires a contract for the alienation of land to be in writing and signed by the parties also the general law amendment act requires a contract of surety ships to be in writing and signed by the surety also the matrimonial property act requires the authorization of the person married in community or property for certain transactions to be in writing and are tested by two witnesses and also certain mining rights and leases need to be notarily executed in terms of the mining title's restoration act the second exception comes in when formalities are prescribed by the parties it is not uncommon for parties to require their agreements to be reduced to writing and signed before such agreements become valid and binding most written agreements are likely to contain a clause in terms of which no variation or consensual termination of the agreement is valid or binding on the parties unless it is reduced to writing and signed by both parties in line with the principle of functional equivalence the ect act provides or makes provision for compliance with these formal requirements through the electronic data messages there can be slight uncertainty that most data messages that can be displayed on a computer or cell phone screen will be considered writing in terms of the common law hence writing in this context merely refers to a depiction of the spoken word which is capable of being read section 12 of this ect act has addressed this by stating that a requirement in law that a document or information must be in writing is met if the document or information is a in the form of a data message or b accessible in the manner or usable for subsequent reference these requirements are stricter than those under the common law in that the data message is required to be available for subsequent reference however this requirement makes important sense in the context of formalities the object of which is to provide legal certainty if a data message is temporary then it cannot be saved for a subsequent reference it cannot provide that certainty if a formal requirement for the validity of a document is that the document must be signed by a party to it it is probably not possible in terms of the common law for such a signature to be authenticated by electronic means in terms of the common law the signature is the handwritten symbol attached to a document by a person an electronic signature does not meet these requirements the signature has several functions one it identifies the person assenting to or testing the document two it attributes a document to a specific person three it indicates ascent by for instance a contract party or attestation by a witness four it authenticates the originality of the document physical signatures have performed these functions in law for centuries however they are not unproblematic or unfailing after all it can be difficult to prove that a signature is a forgery electronic signatures must fulfill all of these functions and provide at least as much legal certainty as traditional signatures where they are to provide an alternative method of signing section 13 of the ect act makes provision for the use of electronic signatures by stating subsection 1 where the signature of a person is required by law and such law does not specify the type of signature that requirement in relation to a data message is met only if an advanced electronic signature is used secondly subject to subsection 1 an electronic signature is not without legal force and effect merely on the grounds that it is an electronic form when electronic signatures is required by the parties to an electronic transaction and the parties had not agreed on the type of electronic signature to be used that requirement is met in relation to a data message if a the method is used to identify the person and to indicate the person's approval of the information communicated and b having regard to all the relevant circumstances at the time the method was used the method was as reliable as was appropriate for the purposes for which the information was communicated when it wants the electronic uh signature has been used such signature is regarded as being a valid signature and to have been applied properly unless the contrary is proved when electronic signature is not required by the parties to an electronic transaction an expression of intent or at the statement is not without legal force and effect merely on the grounds that a it is in the form of the data message or b it is not evidenced by an electronic signature but is evidenced by other means from which such person's intent or other statement can be inferred section 13 draws a distinction between two situations namely one when a signature is required by law and two when a signature is merely required by the parties to an electronic transaction when the law requires a signature that signature must meet the requirements of an advanced electronic signature the use of an advanced electronic signature puts the owners of proof and the person attacking the validity or proper application of the signature and advanced electronic signature can only be issued by a service provider that has been accredited in terms of section 37 of the ect act at this stage the only entity authorized to issue advanced electronic signatures is law trust law trust was first accredited with authentication services as a provider in south africa and remains to be the only private company accredited under the requirements of the ect act for the provisions and advanced electronic signatures when the signature is merely required by the parties themselves any kind of data message that sufficiently identifies the person and indicates his or her approval should be adequate section 13 adds that regard should have been had to whether the method used was reliable and appropriate under the circumstances taking into account the type of information communicated section 13 strives to give functional equivalence to electronic signatures by requiring two things one the signature must be adequate or adequately linked to the message to a specific person that is the author of the signature this ensures identification and attribution secondly a signature must indicate reliably of a person's approval of the document or text thereby establishing ascent and authentication of course as is in the case with any other formalities the parties are free to agree on the kind of electronic signatures that will be regarded as sufficient by them the law sometimes requires authentication of documents by trusted third party such as a notary public section 18 of subsection 1 makes provision for this kind of formality where law requires a signature statement or documents to be notarized acknowledged verified or made under oath that requirement is met if the advanced electronic signature of the person authorized to perform those acts is attached to or incorporated or logically associated with the electronic signatures of data messages if you require any further information on e-form contracting or electronic signatures kindly contact our offices at raymond and raymond incorporated