Assuming a signed writing is required, do e-mails and other electronic media satisfy these requirements?
Courts have found, with some exceptions, that e-mails and other electronic media can satisfy writing requirements. Interestingly, although the UCC defines a ‘writing’ as ‘printing, typewriting or any intentional reduction to tangible form,’ in the majority of cases, courts have had little difficulty overcoming the word ‘tangible’ and have concluded that electronic records are writings.
The signature requirement has proven to be more problematic, however, and deserves special attention. In cases in which a signature is required and the communication is electronic, courts frequently examine whether there is sufficient evidence that the party intentionally and deliberately typed or caused his or her name to be affixed to the specific electronic document at issue.
Courts are much more likely to find that the signature requirement has been satisfied in cases in which, for instance, the sender actually typed his or her name into the document, rather than in those in which the party’s name was generated by some preset automatic process, such as by a fax machine header.
Are there state or federal laws that specifically address the issue of the validity of electronic writings or signatures?
There are both federal and state statutes that may apply and, where they are applicable, they take much of the guesswork out of this issue. The federal statute is the Electronic Signatures In Global and National Commerce Act (ESIGN). The uniform state statute is the Uniform Electronic Transactions Act (UETA).
ESIGN, which applies to transactions in foreign and interstate commerce, establishes as a basic core principle that, subject to listed exceptions, electronic signatures and records cannot be denied legal effect solely because they are in electronic format, as opposed to being on paper. The concept of an electronic signature here is very broad, for it is defined as ‘an electronic sound, symbol or process, attached to or logically associated with a contract or other record and executed or adopted by a person with intent to sign the record.’ Thus, where ESIGN applies, and the forgoing definition is satisfied, it could resolve any question regarding the status of an electronic writing or signature.
Where not pre-empted by ESIGN, the UETA (which has been adopted by 48 states to date) also provides that electronic agreements and electronic signatures on agreements cannot be held invalid merely because they are in electronic form. Moreover, like ESIGN, because the UETA applies to ‘electronic records and electronic signatures relating to a transaction,’ its reach is far broader than the writing and signature requirements of the Statute of Frauds.
There is a crucial restriction on UETA’s application, however, which may prove to limit its usefulness. Namely, the UETA applies only where the parties involved agree in advance that they will conduct transactions through electronic means. Accordingly, if you wish to take advantage of the UETA’s protections, you must obtain such an agreement.
Courtney D. Tedrowe is a partner with Novack and Macey LLP. Reach him at (312) 419-6900 or [email protected].
