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(I’m not a lawyer.) Some lawyer friends I have (here in Australia) have told me that electronic signatures (of the kind like DocuSign and Adobe Sign that have

(I’m not a lawyer.) Some lawyer friends I have (here in Australia) have told me that electronic signatures (of the kind like DocuSign and Adobe Sign that have you “adopt” a digital signature and click a “Sign” button) should only be used in situations where the other party’s actions soon after signing will confirm their intention to be bound by the document. For example, if there is a sales contract and the buyer proceeds to pay the money, then that payment shows intent to follow the purchase agreement. Or, if someone sends an email after signing saying “All done. I look forward to working with you.” — that has the same effect. To use it for something where the other party will be doing nothing for a long time (like a guarantor on a loan or lease) or acting unpredictably (like a house tenant) would be very risky. The other party could easily use the defence of “I didn’t click the button… I didn’t even know about the contract.” even if they did know and did click the button. So why use a digital signing system? Efficiency! It’s quicker and easier. You can get dozens done with the same time & effort it takes to arrange a single wet signature. It’s multilingual. It’s automated. It’s fancy! Having any signature, whether wet or digital, shows that your side is following proper process. The signing of a document is an important moment, and the specific date & time often has real commercial, accounting or legal ramifications. Even if you could easily show to a court that the other party has “agreed” without signing (e.g. via email, text, phone, etc) and is acting in accordance, it’s better to just avoid the court in the first place. To summarise: Wet signatures are best. The other party would be crazy to challenge them. Digital signatures are better than just an email saying “I agree.” The other party would have to be brave to challenge one. An email saying “I agree” is better than a handshake. (Again, I’m not a lawyer! I would love to hear a lawyer’s opinion. Though, please do so anonymously — I don’t want anyone getting in trouble!)

danielmarkbruce 3y ago
It depends on the jurisdiction. At least in the US, the ESIGN Act of 2000 made esignature valid and enforceable. I believe there is relevant case law after this act that back up the core idea that an esignature is valid. People can always claim they didn't sign something, ink or digital. The reason that DocuSign is a multi billion $$ company is that they have a bunch of audit trail features which make it pretty darn clear the person did in fact sign it.
tiahura 3y ago
Lawyer. There's some truth to what they're saying, but is it any different than a handwritten signature? "I didn't sign that. That's not my signature." In both cases, from a legal perspective, the issue is the same: I've got to prove to a judge or jury, by a preponderance of the evidence, you did sign or click. I can either bring in paid whore handwritting analyst to testify that in their professional opinion, it is your signature (and hope he doesn't get excluded for being a quack), or I can subpoena docusign to produce whatever evidence they have that the person actually clicked. In the end, the judge or jury will either believe them or not. If this is a billion dollar life or death deal, my free legal advice is, in either situation, get as much verification as you can at the time of the signing. Both will be easier to prove if you have things like a copy of their driver's license, or even better, video of the person clicking/signing.
- Muromec 3y ago
  Depending on what kind of signature it is, the burden of proving it's validity can also fall on a different side.

danielmarkbruce 3y ago

It depends on the jurisdiction. At least in the US, the ESIGN Act of 2000 made esignature valid and enforceable. I believe there is relevant case law after this act that back up the core idea that an esignature is valid. People can always claim they didn't sign something, ink or digital. The reason that DocuSign is a multi billion $$ company is that they have a bunch of audit trail features which make it pretty darn clear the person did in fact sign it.

tiahura 3y ago

Lawyer. There's some truth to what they're saying, but is it any different than a handwritten signature? "I didn't sign that. That's not my signature." In both cases, from a legal perspective, the issue is the same: I've got to prove to a judge or jury, by a preponderance of the evidence, you did sign or click. I can either bring in paid whore handwritting analyst to testify that in their professional opinion, it is your signature (and hope he doesn't get excluded for being a quack), or I can subpoena docusign to produce whatever evidence they have that the person actually clicked. In the end, the judge or jury will either believe them or not. If this is a billion dollar life or death deal, my free legal advice is, in either situation, get as much verification as you can at the time of the signing. Both will be easier to prove if you have things like a copy of their driver's license, or even better, video of the person clicking/signing.

Muromec 3y ago
Depending on what kind of signature it is, the burden of proving it's validity can also fall on a different side.