Any debate over the validity of e-signatures is silly. Of course e-signatures are valid. You can agree to a contract with any clear manifestation of intent.
Party of the first part: If you agree to be bound by this contract, give me a wink and a nod. Party of the second part: <winks and nods> Party of the first part: Done. Judge: All good.
The hard part is proving someone agreed to a contract when they deny it. That, it seems to me, is when “wet” signatures have an advantage over e-signatures. You can bring in a handwriting expert to testify that the signature matches the witness’s other signatures. You can bring a pen expert to testify that the ink matches the witness’s favorite brand of pen. You can test the coffee stains on the contract for DNA.
How do you do that with an e-signature? With a proper e-signature service, you’ll get lots of circumstantial information generated by the computer on which the signature was made. Here’s what we get from HelloSign, for example.
But look closely. There’s an IP address, an email address, and some time stamps. There is no proof of who was using the computer at that IP address, or of who was logged into that email account. And if that seems unimportant to you, how many of you — not to mention your clients — share a user account on the same computer? How difficult would it be for you to sign into your spouse’s account? Or a family member’s? How often do you see Facebook posts from a friend, spouse, or someone who sat down in the computer lab to find the previous user still logged in?
I think it is a lot harder to effectively forge someone’s signature with a pen than it is to access someone else’s email account using their computer.
Does this mean e-signatures are no good? Of course not. Most of the time the debate is over the form and interpretation of the contract, not over whether someone signed it. E-signatures are perfectly fine when everyone agrees they signed the document. But in the narrow case where a party denies signing the document, I can’t see how an e-signature is equivalent — much less superior — evidence to a wet signature.
I’m not positive I’m right about this. Maybe I’m missing something. If I am wrong or missing something, or if I’m overstating the problem, I’d like to hear about it in the comments.
Featured image: “a signature and a fountain pen on yellow paper” from Shutterstock.