Is a Typed Name on an Email a Valid Signature?

Both Canadian law and American law, through their uniform e-transactions statutes, give a wide definition to ‘electronic signature’ – being essentially any information in electronic form in or associated with a document with an intention to sign the document.

The ‘intention to sign’ requirement aimed to ensure that the same mental element was required for an e-signature as for a handwritten signature.

A recent California Court of Appeal case, J.B.B. Investment Partners v Fair, held that a person who typed his name at the bottom of an email saying ‘ I agree’ to settlement agreement sent to him by email, did NOT intend to sign the agreement and was not bound by it.

Does this sound right to you? The Court said ‘a typed name at the end of an email is not, by itself, a signature under case law.” I do not know the case law referred to. Is there any Canadian case law that says that?

I am aware of Druet v Girouard, where the NB CA speculated that some kinds of document are so important that they need particularly secure e-signatures. (para 30) I know of no authority for that statement, and I am far from sure it’s sound in principle. (In that case, the Court also held that the parties had not intended to be bound by the emails – or at least the purported vendor had not – but that was a conclusion from the text, not from the form or method of the signature.)

What do you think? Should the form of the signature govern the intention in law? So far as I know, it does not for handwritten signatures.

Comments

  1. English law is contrary to this Californian case: see, e.g., Golden Ocean Group Ltd. v. Salgaocar Mining Industries PVT Ltd., [2012] EWCA Civ 265 at [32]-[34]. One suspects that a Canadian court would prefer this approach, which follows the common law principle that any inscription – an ‘X’, one’s forename, initials, or whatever – as a signature if that is the inscriber’s intention as a reasonable observer in the position of the other party would perceive it. Email demands a different form of authentication from vellum: different keystrokes for different folks. This principle is independent of any electronic signatures legislation but the latter’s language, at least in the Uniform E-Commerce Act, would encompass it.

  2. I think there’s an distinction to be made between the action of sending an email and manifesting intent in the corpus of the email.

    In other words, sending an email with an auto-generated footer does not imply intent necessarily.

    There are very interesting cases on this matter. The English case J.Pereira Fernandes SA v. Mehta (2006) dealt with the question of whether the name forming part of an email address could be construed as a signature. There is also the New York case of Parma Tile Mosaic & Marble Co., Inc. v. Estate of Fred Short (87 N.Y.2d 524, 663 N.E.2d 633, 640 N.Y.S.2d 477 (1996)). There is also the ruling of Evans v. Hoare (1892 1 QB 593) where the Court stated that the presence of an email address at the top of an email did not constitute a signature.

    A similar ruling concerning email correspondence was dealt with in Canada in Dursol-Fabrik Otto Durst v. Dursol North America (2006 FC 1115) where the Court concluded that the defendant had sent out emails which identified him in his corporate capacity.

    Lastly, in the New York case of JSO Associates v. Price (2008 WL 904703) the Court also dealt with the issue of emails. Very very interesting case.

    If we look at various definitions of electronic signature, an email clearly comes within the requirements of such provisions (Canadian and US legal framework are extremely similar). It is in electronic form and the person’s name (hoping it’s not a pseudonym) is the link to establish authenticity for the content. My 2 cents.

  3. While I agree that a number of different legal effects might be alleged for an email message, I don’t find the cases cited helpful on the point of this thread.

    The case law varies as to whether a letterhead is a signature that satisfies the Statute of Frauds. While the Pereira case found that an email header did not satisfy the English version of that Statute, there is a Singapore case that held the opposite with respect to email headers. (Stephen Mason’s book on electronic signatures spends a lot of text to demonstrate why Pereira is wrongly decided.)

    The Dursol case was not about signatures but about attribution, and headers of emails were clearly relevant for that. The issue was for much of the discussion not about whether the person had sent, much less signed, the messages but only how he had represented himself.

    The JSO Associates v Price decision – one of many on the Statute of Frauds in the US, where the statutes are not uniform on the point – supports the suggestion in this thread that typing a name at the end of an email does constitute a signature for that purpose.

    There are several legal issues that can arise; it is useful to keep them distinct.

    * is the document signed? (sometimes the law requires a signature without saying whose.)
    * who signed it? (attribution of an admitted signature)
    * who created it? (the Dursol issue – it didn’t matter whether it was signed)
    * did the document express someone’s assent to be bound? (since most contracts don’t need a signature to be binding).

    There is some debate, for example, whether clicking “OK” or “I agree” on a web page is a signature, or just a manifestation of assent. My own informal view is that it is not a signature unless there is something near the clickable icon saying that clicking will be signing.

    If a person actively types his or her name at the end of an email, I think it’s very clear that that is a signature. Just having a signature block there that has nothing personal about it is less likely to be. But in some cases it will depend how unfair the court thinks it would be to let the person out of an engagement that the person clearly intended the other party to believe was made.