The Law Q&A | Law provides for electronic signatures

The Law Q&A | Law provides for electronic signatures

Can a signature other than a pen put to paper be legally recognized in contracts and other documents under Illinois law?

Absolutely. Under certain circumstances electronic signatures used on a document can make the document as valid and enforceable as traditional "wet" signatures.

So says the Illinois Electronic Commerce Security Act. Passed about the same time as the Federal Electronic Signatures in Global and National Commerce Act nearly 20 years ago, the Illinois ESCA law says that just because a signature is done electronically does not disqualify the document from being admitted into evidence in a legal proceeding.

ECSA can apply to consumer transactions involving the sale or exchange of property or services thus making contracts in those situations as enforceable as if the agreements were signed by hand.

Under ECSA, the big exceptions to allowing e-sigs are wills, trusts, living wills and health care powers of attorney. The signature on those documents must still be made upon the paper (or the napkin) with a marking instrument (pencil, pen, quill, magic marker, crayon, etc.).

Also excepted are negotiable instruments (checks, promissory notes) or documents whose possession transfers ownership in something (deeds to land). On those such documents, e-signatures will be enforceable only if the electronic record or signature that is created, stored or transferred is done in a way that allows for the existence of only one unique, identifiable and unalterable original.

ECSA allows that a signed document that must be retained in its original form can be done electronically if there is a reliable assurance as to the integrity of the information at the time the record was first created. The ECSA goes into detail explaining when and how such assurance can be established.

What if you are getting sued by another party to enforce a contract and you deny that the electronic signature on the document was yours or authorized to have been made by you? There, all the rules of evidence can be used. You and the other party will have battle to persuade the deciders on that issue (the judge and/or jury) no differently than if you denied putting a wet signature to the document.

Both the federal and Illinois e-sig laws do not mandate use of e-sigs, only that those can be allowed (with certain exceptions) to the same extent as wet signatures made on a document. And if there is some other specific law that does not allow e-sig, that specific law would apply to overrule ECSA's allowances.

Electronic signatures, by the way, can be a typed name at the end of an email or document (often with an /s/); an image of a handwritten signature such as on a fax; clicking to "confirm" on a "terms of agreement" contract; or a digitally captured handwritten signature made on a computer screen, tablet or phone.

You know, like the kind in stores where your digitally captured signature ends up looking like a Rorschach test.

Or a Belichik flea-flicker out-route diagram of a Tom Brady pass play.

/s/ Bret Keppleyy

Brett Kepley is a lawyer with Land of Lincoln Legal Aid, Inc. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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