Auto generated email footers as ‘signatures in writing’
Neocleous v Rees (County Court) [2019]
A contract for the sale or other disposal of an interest in land must satisfy the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 namely the contract must be in writing and signed by or on behalf of each party to the contract. In this respect the statutory provision is essentially the same as many contractual provisions that require a contract to be signed in order to be enforceable and require variations to be in writing and signed on behalf of both parties. The question was whether an automatically generated email footer containing the name and contact details of the sender constituted a signature.
Facts:
The parties were involved in a dispute concerning a right of way over land. Prior to the dispute coming to a hearing, N sought to resolve the dispute by offering to buy part of R's land. R's solicitor advised N's solicitor that he was instructed to accept N's offer and sent an email later that day confirming the agreed terms of settlement. N’s solicitor subsequently replied by email to confirm the settlement terms were agreed.
There was subsequently a dispute as to whether the alleged contract of compromise contained in the string of emails sent by the parties' solicitors was binding. N argued that the statutory requirements for writing and signature were met on the basis that the series of emails between the parties' solicitors amounted to a single document that was signed on R's behalf by her solicitor through the automatic generation of his name, occupation, role and contact details in a footer at the bottom of the chain of emails provided that the inclusion of the name was for the purpose of giving authenticity to the document.
Decision:
The court found that the relevant email had been signed on R's behalf in accordance with the statutory requirements. The judge concluded that in the current age the notion of a signature would be capable of encompassing the wording in the footer of an email. Whether it was a signature was whether the name was applied with ‘authenticating intent’.
While the email footer was created "automatically" and added to every email, creating that rule involved the conscious action of a person. Looked at objectively, the presence of the name indicated a clear intention to associate oneself with the email, to authenticate it and to ‘sign’ it.
Points to Note:
- This decision, albeit from a very junior (County) court is consistent with the function over form approach evident in other recent case law that has considered the validity of electronic execution in the context of different statutory requirements for signature (such as section 4 of the Statute of Frauds 1677). It also reflects the statement of the law set out in the Law Commission's 2019 report on electronic execution namely that an electronic signature is capable in law of being used to execute a document provided that the person signing the document intends to authenticate the document and any relevant formalities relating to the execution of that document (whether required by statute or laid down in contract or other private law instrument) are satisfied.
- The decision also suggests that (in some circumstances at least) it is possible for the necessary authenticating intent to be demonstrated where an electronic signature is generated automatically (a similar view was expressed the Law Commission in paragraph 3.80 of its 2018 consultation paper on electronic execution). Parties negotiating agreements by email (including those that are subject to a statutory requirement for signature) should therefore be alive to the possibility that an automated signature added by their email software could be capable of showing the same authenticating intent (and thus having the same binding effect) as the deliberate act of manually typing their name at the bottom of the email. Where such an outcome is not intended, consideration should be given to ensuring that the messages incorporate suitable "subject to contract" wording or similar language or disclaimers to negate any intention to become bound through an exchange of emails.