Technology has changed the way business is transacted in the 21st century, particularly in the last several years. The onset of COVID-19 has accelerated advancements in technology even more. Necessity being the mother of invention (an English language proverb, the origin of which is unknown), is an apt expression to characterize what’s happening in today’s world. However, many folks are leery of using electronic or digital signatures or simply have not used them enough to get comfortable with them. You need not be afraid!
The use of electronic or digital signatures on legal documents and contracts is really not that new but has certainly come into vogue lately. Electronic contracts and electronic signatures are just as legal and enforceable as traditional paper contracts signed in ink. Federal legislation enacted in 2000, known as the Electronic Signatures in Global and International Commerce Act (“ESIGN”, Pub.L. 106–229, 114 Stat. 464, enacted June 30, 2000, 15 U.S.C. ch. 96), removed the uncertainty that previously plagued e-contracts. ESIGN is enforceable in every state and territory where federal law applies.
Where federal law does not apply, the Uniform Electronic Transactions Act (“UETA”), has been adopted by 48 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. Two states that have not adopted UETA – Illinois and New York – have passed their own statutes governing electronic signatures. Florida is one of the states that has adopted the Uniform Electronic Transaction Act – Florida Statutes § 668.50. Florida also passed the Electronic Signature Act (“ESA”) (Florida Statutes §668.001-006), which states that electronic signatures have the same legal force as written signatures unless otherwise provided by law.
The following fundamental principles apply to electronic or digital signatures:
– A record or signature cannot be denied legal effect or enforceability simply because it’s in electronic form.
– A contract cannot be denied legal effect or enforceability simply because an electronic record was used in its formation.
– If a law requires a record to be in writing, an electronic record satisfies the law.
– If a law requires a signature, an electronic signature satisfies the law.
– Electronically executed agreements can be presented as evidence in court.
Please note however, that in the states that have adopted UETA (and this is also true of ESIGN), birth certificates, wedding certificates, death certificates, and wills, codicils, and testamentary trusts are typically excluded from coverage – these still need an ink signature.
Electronic signatures facilitate faster and more secure document signing, with the flexibility to choose the option that is most efficient for each person, business, or company. There are various ways to create an electronically “signed PDF” document; DocuSign and RightSignature being two of the more popular methods (even allowing execution on mobile devices as well as computers).
If you work in the real estate industry, and you have not already, you should become more familiar and comfortable with esignatures.
Laws pertaining to digital and electronic signatures are constantly evolving; should you have any questions with regard to digital and electronic signatures, we urge you to contact or consult with your local real estate attorney, for additional guidance.
Mark C. Hanewich, Esq., firstname.lastname@example.org
Berlin Patten Ebling, PLLC
This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.
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