Skip to main content

Search

Consumer Banking and Payments Law: 11.5.5.3 When Underlying Law Specifies the Nature of Transmission

E-Sign requires that an electronic transmission include verification or acknowledgment of delivery when the underlying law that requires the delivery also specifies verification or acknowledgment. If a law enacted prior to E-Sign expressly requires that a record be provided with verification or acknowledgment of receipt, the record can be provided electronically only if it too utilizes a methodology that provides verification or acknowledgment of receipt.415

Consumer Banking and Payments Law: 11.5.5.5 Proof of Delivery

Separate from the issue of how electronic records must be transmitted is the issue of whether they have in fact been transmitted when the consumer disputes receiving the record. For example, how are courts to decide whether information has been emailed when a consumer testifies that the email was never received? E-Sign does not provide any guidance on this issue. UETA establishes rules to determine the time and place of sending and receipt,421 but not about the manner of proving receipt.

Consumer Banking and Payments Law: 11.6.1 General

In order for an electronic act to carry the significance of a signature, that act must meet the definition of an “electronic signature.” Under both E-Sign and UETA, an “electronic signature” 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 the intent to sign the record.”432 As noted by the authors of UETA—

Consumer Banking and Payments Law: 11.6.2 Examples of Electronic Signatures

E-Sign and UETA do not limit the range of electronic signatures. An electronic signature does not require a digital signature or any special security device in order to be an effective signature. In fact, E-Sign explicitly preempts state laws favoring certain electronic signature technologies.456 An electronic signature could consist of:

Consumer Banking and Payments Law: 11.6.3.1 Generally

The question of whether a person has evidenced an intent to sign an electronic document using an electronic signature is somewhat linked to the question of whether that person agreed to conduct a transaction by electronic communications. However, there can be important distinctions.

Consumer Banking and Payments Law: 11.6.3.3 Signatures Applied to Click-Through or Hyperlinked Electronic Records

Where a website requires the reader to click through different screens, there is a question as to whether the simple act of clicking is sufficient to evidence an intent to sign the agreement that is either shown on the screen, or simply referred to on the screen with a hyperlink to the record that is being signed. Agreements created in this way are called “browsewrap” or “clickwrap” agreements.

Consumer Banking and Payments Law: 11.6.4.2 Applying Forgery Claims to Electronic Transactions

The concept of authentication—i.e., determining the parties with whom one is doing business—in the black box of electronic commerce is completely absent from both laws authorizing electronic signatures.539 Instead, the method and process of party and document authentication is left to the marketplace and common law.540 Courts have determined that the burden of proving the validity of the electronic signat

Consumer Banking and Payments Law: 11.6.4.3 Ratification

Generally, one is considered to have ratified an electronic contract by their actions—including discussing, by email, the condition and timing of delivery of those goods.586 Some courts have conflated the issue of whether some agreement was reached with whether the specific agreement to which the party is being held was agreed to with an electronic signature.

Consumer Banking and Payments Law: 11.6.5 Notarization, Acknowledgment, and Other State Law Signature Requirements

If a statute, regulation, or rule of law requires that an individual’s signature be notarized, acknowledged, verified, or made under oath, that requirement is satisfied if the notary, witness, or other person authorized to perform those acts uses an electronic signature.598 That electronic signature must be attached or logically associated with the signature being notarized or verified.599

Consumer Banking and Payments Law: 11.6.6 Practice Tips for Electronic Signature Issues

Because an electronic signature can differ so dramatically in implementation, ceremony, and the clear application to the agreement than a handwritten signature, consumers may unwittingly execute what will be claimed to be a valid signature in an electronic medium. However, the fact that the supposed signature is electronic does not shield it from any challenges as to its authenticity.