November 11, 2020

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    On 5 November, the UK entered a second lockdown, scheduled to last until 2 December. Along with the many other challenges lockdown brings, this means that all of us here at Law 365, and the majority of our clients, will be working from home again every day.

    As prepared as we have all tried to be, not everyone has the conveniences of a professional office in their own homes. Without access to printers, scanners, and even certainty of postal services, a question we were asked a number of times during the first lockdown, and which will be relevant again now, is whether your commercial contracts can be signed electronically.

    Can my contracts be signed electronically?

    In most cases, yes.

    This is, however, subject to a few important caveats. Firstly, check your contracts!

    • Most agreements will have a definition of what the parties agree ‘in writing’ means. If your contract has been signed recently, email will likely be included
    • If your contract hasn’t yet been signed, now is a good time to check this is covered, and if not – add it in
    • If your contract excludes email or electronic formats in the definition of ‘in writing,’ you should contact the other party to agree this format, using the variation procedure contained in your agreement

    What is the current guidance for e-signatures?

    It’s important to say at this stage that there has been no specific guidance on the use of e-signatures, but the Law Society is looking to change this. In many cases, electronic signatures can be a valid form of execution. In the meantime, the current guidance is that parties should:

    • Agree in advance to use electronic execution
    • Verify the signatories in advance, considering any jurisdictional restrictions
    • Report that the document has been validly executed.

    What constitutes an electronic signature?

    • Using a service like DocuSign
    • Scanning a copy of a wet ink signature
    • Typing your name into a document
    • Using a photo of your signature
    • Typing your name at the bottom of an email

    ALL of the above have all been found acceptable as valid electronic signatures.

    Can I sign a deed electronically?

    There are still some documents that must be signed in the traditional way and where e-signatures will not be accepted. Deeds can be signed electronically, if two directors or a director and company secretary are signing electronically.

    Where a deed, or any other document, needs to be signed in the presence of a witness, this needs to be the physical presence of a witness. That is not to say that you cannot get a deed or other document witnessed, but social distancing measures can be observed by signing 2 metres away from each other.

    Further reading

    The Law Society “The use of virtual execution and e-signatures during the Coronavirus pandemic

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