Saturday, July 6, 2013

Does signing on an iPad count as a legal signature?

With technology changing at such a rapid pace, the question of what makes for a valid signature is really getting interesting. If you can sign a little screen at the grocery store then can you sign a contract on your iPad? In a word: yes.

In most states, if a court finds that your signature was intended by you to be valid it really doesn’t matter what form it took (e-signature, a scribbled “x”, a signature that someone signed on your behalf with your permission). This is because signatures in our country are generally judged on the signatory’s intention when she signed rather than the modality of the signature. It is also related to the fact that in the U.S. many types of agreements do not technically require any writing at all to be valid (but see here for my post on what types of contracts do need to be in writing and why the rest of them should be).

There are two major exceptions to this rather lackadaisical approach to signatures. The first is by agreement: people and businesses can contract to accept certain methods of signatures in their business relations. You could, for example contract to only accept “wet” signatures that are handwritten with a pen or to accept faxed signatures as originals. Because of this freedom to agree about what constitutes a valid signature, the many different companies you interact with may have different rules that you agreed to (I know you read every riveting page of that agreement with Visa you signed when you got your credit card).

The second major exception to the general rule of “it’s valid because it was meant to be valid,” is when a specific statute in your state says that certain types of agreements or documents have to have a witnessed, acknowledged, sworn under penalty of perjury, and/or wet signature. In many states, for example, the signature on a will must be witnessed by two people. The signature doesn’t have to be fancy, with certain exceptions an X will do, and the person (called a “Testator”) doesn’t even have to write the signature themselves (though, unless there is a Court order, they must at least be directing the writer to sign on their behalf), but two witnesses must witness someone actually signing and rules are rules— the signature isn’t valid otherwise.

But can the Testator and her witnesses sign on the a iPad? Funny you should ask. (Well, you didn’t really ask, but far be it from me to let truth get in the way when I’m attempting a pithy segue.) Recently, in Ohio, a judge ruled that a will written on a Samsung Galaxy tablet computer, because no paper was available, was valid. I don’t know of a similar ruling anywhere in California, but it’s bound to happen if it hasn’t already, as electronic signatures are becoming the norm in every other aspect of our lives. For now though, I would stick with a wet signature for such an important document.

For more information on what constitutes a valid electronic signature see the Uniform Electronic Transactions Act. Here are the cliff notes: under UETA, the term means “an electronic sound, symbol, or process, attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.” If that sounds pretty broad, it is. Also, just to save you the research time, I will let you know that is the same definition adopted by the U.S. ESign Act of 2000, which has been adopted in every state except New York, Washington State, and Illinois (and each of those states have their own electronic signatures statute). So, yeah, basically if you signed the contract on an iPad, you’re stuck with it.

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