Expediting legal work is one thing, but are electronic signatures legally valid?
In our recent post we explained some of the benefits of e-signatures. However, before partnering with e-signature provider, Sign&Send, we thought we’d check things out properly. We took advice from Edinburgh’s Stuart & Co.
Here’s what they had to say.
These are the most basic form of e-signature. Many platforms such as DocuSign and Adobe Sign use SES as their standard service. SES collects meta data on the signing, including information around the date and time of signing, the email address to which the request to sign was sent, and the IP address of the device. These platforms can also use two factor authentication. This means the signatory needs to insert a code that has been sent to a mobile number. This reduces the risk of someone with delegate inbox access signing in someone else’s name.
Examples of SES signing include:
This is the least secure of the three main e-signatures recognised by the EU Regulation No 910/2014 Electronic Identification, Authentication and Trust Services (eIDAS) Regulation.
The primary areas where simple electronic signatures, such as the standard functionality in DocuSign and Adobe Sign, are not a valid means of signing are in relation to:
Under Scots law, documents can only be authenticated electronically where AES is used. For an electronic signature to be considered advanced, it must meet several requirements:
The ability to identify the signatory is the main difference between the SES and AES. While the simple electronic signature does not necessarily identify the signatory, in the advanced electronic signature it is an essential requirement. This difference is key when signing contracts or content where parties do not require the document to be self-proving but the risk taken is higher. AESs cannot become self-proving by having an AES witnessed. The only self-proving signatures are QESs and traditional wet ink signatures witnessed by a wet ink signature.
This is the most secure form of electronic signature. A QES uses cryptography and is issued by a trusted third party. However, because the trusted third party needs to independently validate the entity of the signatory, there are only limited situations where a QES will be available. The most common would be a signature applied by a Scottish solicitor using their Law Society Smartcard as part of a closed loop system for a particular purpose. An example of where a QES can be used is a solicitor signing for and on behalf of his/her client when executing Missives.
The standard SES functionality within the platforms such as DocuSign or Adobe Sign does not meet the requirements for an AES or QES. Platforms such as DocuSign advertise the ability to use all three eIDAS-compliant eSignatures for a fee. However, it is unclear how readily accessible these are to the public.
Documents signed by SES or AES are validly signed (under exception where Scots Law states otherwise). However, if a dispute arose, extrinsic evidence would need to be led to prove the validity of the grantor’s signature. Where possible it is recommended parties wet ink sign the document in the presence of a valid witness (being an individual, not a party to the contract, who has capacity to sign and witness), scan and exhibit the wet ink scanned document to the other party. A counterpart provision can be added to agreements, this allows each signed document to be treated as an original and when the two signed documents are read together this creates the complete instrument.
There are certain deeds including but not limited to wills and testamentary writings, and certain documents which are to be registered (for example deeds to be registered in the Land Register of Scotland or the Books of Council and Session) that must be created and signed in traditional form using wet ink signatures. If you are uncertain whether a document is capable of being signed electronically you should consult a solicitor.
To find out more about whether electronic signatures are legally valid, take a look at this pdf document from the Law Society of Scotland below. The document was issued on 20th March 2020. Please check their website for updates.
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