Sunday, April 23, 2006

Email addresses are not signatures

(via Out-Law) The England and Wales High Court has ruled that email addresses are not to be considered signatures (Metha v J Pereira Fernandes SA [2006] EWHC 813 (Ch)).

JPF is a Portuguese company that supplies bedding products, and supplied then to a British company called Bedcare Ltd. Bedcare failed to pay for the products it had received and were eventually involved in attempts to arrange for payment in early 2005. At that time, the Director of Bedcare Ltd., Mr Metha, asked a clerk to send an email to JPF's solicitors in order to arrange a repayment plan by providing a personal guarantee of £25,000 GBP. The email was not signed by Mr Metha, but it came from his email address, which is the one that had been used to communicate with the supplier so far in emails that had been adequately signed.

The question in this case rested in two parts. Was there a contract and was there a signature? Did the email constitute a personal guarantee to pay the promised amount if it was not sent directly by the guarantor? Was the email address enough to prove provenance and the will to enter into an obligation by sender? The case was initially heard by a District Judge in which it was determined that the email itself was the guarantee.

In the appeal, Judge Pelling QC found that the email was an offer, and therefore not a complete contract. With regards to the signature issue, it is good to remember that all of the UK jurisdictions consider all sorts of things as signatures, including rubber stamps, faxes, and even the printed name in a form. But n this case Mr Metha's name was not even included in the email, therefore not fulfilling the usual requirements for a signature. Was the email enough? Not according to the judge. The email would be analogous to a phone number, not a signature. He explains:

" seems to me that a party can sign a document [...] by using his full name or his last name prefixed by some or all of his initials or using his initials, and possibly by using a pseudonym or a combination of letters and numbers[...], providing always that whatever was used was inserted into the document in order to give, and with the intention of giving, authenticity to it.
[...] I have no doubt that if a party creates and sends an electronically created document then he will be treated as having signed it to the same extent that he would in law be treated as having signed a hard copy of the same document. The fact that the document is created electronically as opposed to as a hard copy can make no difference. However, that is not the issue in this case. Here the issue is whether the automatic insertion of a person's e mail address after the document has been transmitted by either the sending and/or receiving ISP constitutes a signature for the purposes of Section 4.
[...] To conclude that the automatic insertion of an e mail address in the circumstances I have described constituted a signature for the purposes of Section 4 would I think undermine or potentially undermine what I understand to be the Act's purpose, would be contrary to the underlying principle to be derived from the cases to which I have referred and would have widespread and wholly unintended legal and commercial effects."
A very sensible ruling in my opinion. It is clear that an email address may not be enough to prove the signature of a document, particularly because they are easily forged. It is easy to get an email address that looks like somebody else's, somebody could get for example. It is also easy to forge email addresses with access to an SMTP server.

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