VanAntwerp Attorneys, LLP
Phone: 606-618-0698

Elements required for electronic signature validity

The speed at which new technologies become adopted on a mass scale is staggering. The smartphone is just 10 years old, yet they are nearly ubiquitous across the United States. Slower to take root, but perhaps no less transformative, is the concept of electronic signatures.

Proponents hail the convenience electronic signatures provide in facilitating transactions. But the scope of that validity is not universal. For example, Kentucky has adopted provisions of what is known as the Uniform Electronic Transactions Act (UETA). It allows for the use of electronic signatures in certain instances when all parties agree to it. Notably, the law does not currently extend validity to transactions dealing with real property or real estate, though there are legislative efforts underway to change this.

What makes for a valid e-signature.

Historically speaking, validity of most e-signatures has been recognized for nearly two decades. The UETA and the federal Electronic Signatures in Global and National Commerce Act (ESIGN) established rules to validate e-formatted signatures which include:

  • Signer's clear intent: The signature, in whatever form it appears, must reflect the signer's intention. Individuals demonstrate this by either entering an electronic signature, typing in their name or clicking an acceptance box.
  • Specific consent language in the agreement: There must be a clause in the contract indicating consent by all parties.
  • Clear record of association: Any system used for e-signing must incorporate a way of showing that a generated signature attached to a specific document.
  • Record retention: E-signed documents must be discoverable and reproduceable to serve their purpose. And access needs to be available to all the involved parties. Providing hard copies of the signed document to each party can meet this requirement.

Electronic signature technology can make transacting business more convenient. It can also carry legal risks if it does not meet required legal standards. It's useful to remember, too, that despite two decades of history, the law on e-signatures remains in flux, so working with experienced counsel is advisable.

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