Can your email footer amount to a signature?

The world’s oldest known signature, from Sumeria (in modern-day Iraq), was added to the back of a clay tablet in circa 3100 BC.

Fast forward to the 21st century, electronic signatures are now used as a popular and quick way to execute documents.

Do electronic signatures carry the same weight as wet ink? Is an electronic signature legally binding? What does it mean if you send an email which includes your name, occupation, role and contact details at the foot of an email? Could this render a document to be “signed” on behalf of one party?

Background

Contracts for the sale of land must meet formal requirements as set out in section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. Contracts must be made in writing and incorporate all of the terms which the parties have expressly agreed in one document. A contract must also be “signed by or on behalf of each party to the contract.”

The High Court considered the above issues in the recent case of Neocleous v Rees [2019] EWHC 2462 (Ch). In this case, both parties owned property at Ghyll Head near Lake Windermere. The defendant, Christine Nees, applied to the Land Registry to register a right of way against the title to the claimants’ property. A hearing was listed to take place in March 2018. 

Settlement discussions took place between the parties’ solicitors in the lead up to the hearing. The parties’ solicitors agreed a settlement for the transfer of land by way of a series of emails. 

The issue

The key issue in this case turned on whether the automatic generation of one of the solicitor’s names and other details on his email footer constituted a signature. In summary, the defendant’s solicitor stated the following:

“Dear Daniel,

Further to our telephone conversation, I am pleased to confirm that terms of settlement between our respective clients have been reached on the following basis:

Your clients will pay to my client the sum of £175,000 for the transfer of my client’s jetty/boat landing plot/mooring….

I would be grateful if you would acknowledge receipt of this email and confirm your agreement to the above in order that I can then advise the Tribunal.

Many thanks

David

Solicitor and Director

For and on behalf of…(contact details followed for David)”

The claimant’s solicitor replied in the following terms:

“Thank you for your email and I confirm my agreement with its contents.

 Kind regards

Daniel

Associate, Dispute Resolution for and on behalf of ……

(Contact details followed)”

The claimant contended the email correspondence amounted to a binding contract signed by or on behalf of each party.

The defendant contended there was no enforceable contract because the email did not show:

1. an intention to create an agreement for the disposition of an interest in the land,
2. the email did not contain all of the terms of the agreement, and
3. the emails were not signed by the parties.

The decision

HHJ Pearce agreed that whilst the email footer was created “automatically” it was common ground that the manual typing of the words “Many thanks” at the end of the email suggests the author was relying on the automatic footer to sign off his name. 

The mere presence of a name “indicates a clear intention to associate oneself with the email – to authenticate it or to sign it.” The recipient of such an email would typically conclude that the sender’s details had been included as a means of identifying the sender with the contents of the email.

Furthermore, the presence of the name and contact details in an email is in the “conventional style of a signature” at the end of the document.

HHJ Pearce was satisfied that the defendant’s name was applied with authenticating intent and therefore the email footer was treated as a sufficient act of signing.

What are the implications of this decision?

Although this decision is in a property context, it has a more general application to professionals. This decision is of relative importance as emails are the most common means to engage in correspondence.

The decision will cause parties who send emails to consider the implications of their name and details being inserted as a footer in an email.

Even in this digital age, I would suggest professionals should insert the words “subject to contract” at the top of each email to ensure they do not become contractually obliged to press ahead in a transaction. Parties should also send a new message which refers to previous messages because a reply could create a single document.

Any clarity from the Law Commission?

The Law Commission recently issued a report (Electronic Execution of Documents) to determine the validity of e-signatures and assist users of e-signatures. The Law Commission has confirmed that an e-signature can be “capable in law of being used to execute a document (including a deed) provided that the person signing the document intends to authenticate the document and any formalities relating to execution of that document are satisfied”.

The courts will adopt an objective approach and will consider all of the surrounding circumstances to determine whether the person signing a document intended to authenticate the document or deed.

I am of the view that the use of e-signatures can be two-fold. There are risks when using an electronic signature which include:

• the vulnerability of a signatory,
• the potential risk of fraud,
• the validity of documents in other jurisdictions, and
• the risk of agreeing accidentally. 

Alternatively, they can be beneficial for businesses as it would be practical and increase efficiency. It could also be argued that verifying electronic signatures by the use of passwords, login details and personal questions would be more reliable than wet ink signatures as it reduces the risk of forgery.

If you have any questions about e-signatures, or if you are a business involved in an ongoing dispute, please contact our Dispute Resolution team. 

I am based in our Chelmsford office and can be contacted on 01245 453804 or [email protected].