With the downstream effects of the coronavirus (Covid-19) still looming, the world has had to adjust to the “new normal.” However, with this paradigm shift, businesses and individuals now have the opportunity to take advantage of existing options that have been available to them but often not utilized.
Take for instance, e-signatures. The Electronic Communications and Transactions Act (ECTA) in the Bahamas established that e-signatures could be used to validly execute a document provided that the person signing the document intends to sign it and any other formalities relating to the document are satisfied.
E-signatures come in varying forms, from sophisticated signing software to the commonly used “I accept” button. The ECTA defines an e-signature as “any letters, characters, numbers, sound, process or symbols in electronic form attached to, or logically associated with information that is used by a signatory to indicate his intention to be bound by the content of that information.” While e-signatures are generally valid, there are some exclusions to their use for certain documents such as deeds and other testamentary instruments and the conveyancing of real property. Thus, the use of an e-signature will be assessed on a case by case basis.
Even though the ECTA has been in effect for over a decade, not many businesses nor individuals have taken advantage of its allowances and with most persons now working from home, the ability to execute documents remotely is highly beneficial. Other advantages of having e-signatures legally recognized is the reduction of unnecessary delays for the completion of a transaction and the allowance for documents to be signed on a phone, on a computer or on a tablet.
However, with the limitations of the ECTA, law makers will be faced with balancing how to broaden the use of e-signatures while ensuring that contractual parties and their interests are protected. Similar considerations were made by the United Kingdom’s Law Commission. Aware that problems may arise with certain documents, the Law Commission concluded that for documents such as a deed, where the law requires the signatures to be applied in the physical presence of the witness, an e-signature may be used if the signatories sign on the same device as this would help to establish that they were in the same physical location.
Still, it should be pointed out that not all devices are secure or reliable. This is why it is important that when a contractual party decides to use an e-signature the following things be considered: the type of e-signature, the type of document, whether there is an automatic date and time stamp on the document and the location of the persons who will sign the document.
Once contractual parties are diligent the benefits of e-signatures may far outweigh the drawbacks. Thus, while it may take some time to transition as the use of traditional pen and paper is so intrinsic, the ease and efficiency of e-signatures will help to pave the way forward.
This publication is a general summary of the law. It should not replace legal advice which should be tailored to your specific circumstances.
