What is an eSignature?
An electronic signature (eSignature) is a legally recognized electronic means that indicates that a person adopts and agrees to the contents of an electronic message or electronic contract. An eSignature is “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.”
eSignatures help to establish the following assurances:
Advantages to Constellation1 eSignatures:
In 2000, the federal government enacted the Electronic Signatures in the Global and National Commerce Act (commonly referred to as the “E-Sign Act”). The E-Sign Act created a universal standard for contracts, signatures and records created by electronic means. The most important aspect of the E-Sign Act is that “a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic format.” In other words, electronic signatures and contracts are legally enforceable.
Electronic contracting is, fundamentally, contracting and contract law. Any contract, electronic or not, requires:
- “Offer,” “Acceptance”, and
- “Consideration” – some promised exchange of value
- “No defenses” – A contract, electronic or not, will not be enforced if a successful defense can be raised: for example, if an element of the contract is “unconscionable” (violates public policy), if one of the contracting parties was too young to create a contract, etc. What is NOT allowed to be signed with digital signatures (eSignature®)? ESIGN and UETA define several contracts that are not covered by the legislation. This is not to say they are invalid as electronic transactions; they are simply not part of the ESIGN legislation. This list includes:
- Wills, codicils or testamentary trusts
- UCC transactions (other than Article 2 and Article 2A transactions) generally are excluded, in the UETA (and NCUETA as per N.C.G.S. section 66-313(b)(2)), but in appropriate instances the UCC already provides or will provide for electronic treatment.
- Any notice of cancellation or termination of utility service or to any notice of default, acceleration, repossession, foreclosure or eviction (or the Right to Cure) under a credit agreement secured by or a lease of a “private residence for an individual”.