In Queensland, the law allows for electronic signatures to have a binding legal effect. This doesn’t have to be by signing with a digital pen or stylus – emails, footers and simple typed names are all capable of constituting a “signature”.
Before an electronic “signature” can be binding from the communication made, it must be able to be reasonably determined who the sender is, and the sender’s intention. Simple emails have been held to satisfy this requirement, including satisfying the requirements of writing and signing required under the Property Law Act.
The recipient must also consent to receiving signatures by electronic communication. But consent can be implied where the recipient relies on the communication or where both parties have participated in discussions leading up to an agreement by email.
So why do lawyers keep making me sign things with a pen?
A good question. Why is “wet signing” (signing with an actual pen) still required so often? In spite of the provisions of the Electronic Transactions Act 2001 (Qld) (ETA), there are many specific exclusions to the electronic signature rules including:
- Court documents
- Documents that require postal delivery or in person service on an individual
- Documents that need to be witnessed (such as deeds, affidavits, statutory declarations and documents for land transfers)
In one recent case* it was found that, regardless of whether the electronic signature rules may apply to a particular document or agreement, a witness must be physically present to validly witness a document which effectively limits further your ability to electronically sign a document.
So while you might be able to unlock your phone with a fingerprint and sign a contract for software by entering the right captcha code, it seems we are still a long way off from an age of completely electronically signed and witnessed legal documents.
If you have questions or concerns about electronic signatures or whether an exchange of emails may constitute a binding agreement please contact us.
If you want to learn more about the benefits of an online meeting, please watch the video below: