Comments on: Enforceability of Fax and Scanned Signature Pages

By: acory

acory — Mon, 26 Jul 2010 19:28:02 +0000

Old thread but a bridge I am just drafting across. I include below my first attampt to incorporate .pdf as well as fax as valid signatures. What i find amusing (or troubling) is that if this language is truly required to enable validitiy of such signatures, and the first signing of any document is by fax/scan, isn't there a problem with the fact that the enabling language being ratified by the fax/scan signature (in other words how can a signatory ratify fax signature acceptability by providing a fax signature! )

————Draft Provision———-

ACCEPTANCE OF FACSIMILE AND SCANNED SIGNATURES. The parties agree that this Agreement, agreements ancillary to this Agreement, and related documents to be entered into in connection with this Agreement will be considered signed when the signature of a party is delivered by facsimile transmission or delivered by scanned image (e.g. .pdf or .tiff file extension name) as an attachment to electronic mail (email). Such facsimile or scanned signature must be treated in all respects as having the same effect as an original signature.

By: DMA

DMA — Tue, 08 Apr 2008 18:25:42 +0000

TGD, we simply add to the counterparts section something along the lines of:
“Delivery of an executed counterpart of a signature page to this Agreement by fax or e-mail shall be effective as delivery of a manually executed counterpart of this Agreement.”

David Colman, I agree that it seems to be a conundrum, but then again doesn’t the same issue arise with regard to reps as to authority to sign the document, etc.?

By: Paul in Boston

Paul in Boston — Mon, 12 Nov 2007 22:42:13 +0000

I agree with Kurt that the trend is to send signed documents by .pdf file followed by an original as opposed to faxes, which are becoming obsolete (though I disagree with his East Coast observation). And I believe the quality of .pdf files — especially color — are superior to faxes. We all need to remember, moreover, that the “best evidence rule” is a rule of preference, not preclusion, and thus the authenticity issue should only surface if there is a legitimate question regarding the reliability of the .pdf signature (e.g., one can easily cut and paste a .pdf signature).

To respond to TGD’s comment, I generally put in language (in the notice section of a contract) that acceptable notice includes email followed by fax or regular mail. There is no magic phrase one needs to use, and it really depends upon the extent to which your company relies upon email, your business needs, how quickly you want to send or receive a notice and the level of risk associated with electronic notice. At some companies, not all employees might have access to or use email routinely. Thus, whatever language you choose should reflect how your company operates on a daily basis and any particular needs.

By: David Colman

David Colman — Mon, 12 Nov 2007 16:37:35 +0000

I have always wondered how this works…an agreement with fax/email signature providing for the acceptability of fax/email signatures.

Could somebody please enlighten me?

By: TGD

TGD — Sun, 11 Nov 2007 22:28:27 +0000

Being brand new to contract drafting, I’d be very interested in seeing a clause or two that explicitly allow transmission by .pdf and email. The clauses that I have reviewed all deal with fax transmission only. Any model clauses on this point?

By: Kurt

Kurt — Sat, 10 Nov 2007 02:05:58 +0000

Folks, “fax signatures” are near non-existent today, except for the stuck up East Coast companies and in certain industries (real estate, travel, etc.) that still have fax machines. The dominant method of signature is by .pdf and email with original to follow. Most contracts have a provision that says that is the execution method.

“Signature pages” are just stupid (or for people who cannot afford scanners). They are great for litigators who want to argue for weeks over the parameters/scope/terms of the contract. “Signature pages” are a 1980s holdover to when people paid long distance charges to send long faxes. (Hint: No one much sends faxes today.)

I agree that whether the signature/mark/present intention to adopt is enforceable is a simple issue that has been about since the beginning of contractual time.

By: JHK

JHK — Thu, 08 Nov 2007 15:01:54 +0000

It may be less than ideal, but this practice (speaking from experience) is common in even the most white-shoe firms. Signature pages are exchanged by counsel and held “in escrow,” and are not released until the parties agree on the final version…which often isn’t until the wire deadline. I preface this with that most often it happens with routine closing documents.

By: mike

mike — Thu, 08 Nov 2007 14:11:27 +0000

My two bit answer to the original question: yes, subject to the exact same evidentiary requirements that always exist in a contract dispute.

For electronic versions of signatures (and contracts), thanks in part to state and federal laws (E-SIGN), the questions of validity and enforceability are basically the same as they are for traditional signatures: whether one can attribute the signature to the other party and whether one can show that the ‘signature’ was intended to be a ‘signature.’

Traditional signatures, whether scanned or faxed, (while sufficient) are not necessary for the enforceability of that contract. Among other things, the definition of signature in state and federal laws include the word “process.” So, for example, a click of a button, attaching some secure signature technology, typing your name like /Mike/, etc. can all be sufficient and effective for a valid, enforceable contract. Again, the only question is whether you can attribute the “process” or other “signature” to the party you intend to bind.

Also, JHK’s practice of obtaining signatures early [Note by KAA: JHK mentioned this practice but didn't advocate it], I would imagine, suffers from innumerably more problems than any electronic signature/contract would suffer.

By: JHK

JHK — Thu, 08 Nov 2007 13:36:36 +0000

Another commonly used practice is for counsel to obtain signature pages from the client while the deal is still moving, and holding them until the final version is agreed on. The signature page (which is a stand alone page) is then affixed to the body of the final version.

This method is extremely convenient for transactional lawyers and their clients. However, there’s bound to be a situation where party A affixed the signature pages to the wrong version of the document.

I remember in my days in private practice sending out an e-mail at the conclusion of the deal with all the documents adobed in “closing book” form so that there was a record of what the deal was, and that later it couldn’t be argued that version 10 was actually the wrong version.