Email programs create an email signature that’s automatically positioned at the close of your electronic mail.  It generally gives your name, title, business address and supplementary personal or business related data.  The current legal buzz over email signatures is whether those signatures create a valid legal agreement when you’re talking terms with another person or company by electronic mail.

In the United States, federal and state law allow for the enforceability of electronic signatures. For transactions affecting interstate commerce, a federal statute called the Electronic Signatures in Global and National Commerce Act (E-SIGN), 15 U.S.C.  7001 et seq. protects such transactions. Under this legislative act, a signature can’t be denied legal validity or enforcement only because it is in electronic form. 15 U.S.C.  7001(a)(1). The Act defines an electronic signature as an electronic sound, symbol, or process, attached to or logically connected with a contract or other record and executed or adopted by a person with the intent to sign the record. 15 U.S.C. 7006(5).  The Act establishes no additional requirements for electronic signatures.  The Act, therefore, is rather broad and permits a generous assortment of signatures and identifiers to be considered a signature.

Additionally, nearly all states have passed the Uniform Electronic Transactions Act (UETA). UETA allows for the enforcement of electronic signatures after the parties to a transaction have decided to carry on transactions by electronic means. UETA  5(b). The parties’ arrangement to transact electronic transactions is verified from the context and immediate circumstances, including the parties’ behavior. Id. Once the parties’ purpose is evidenced, UETA provides that electronic signatures are enforceable. There are no specific prerequisites regulating the form of an electronic signature. The UETA defines electronic signature as an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record. UETA  2(8).

The topic of an email signature creating a legal contract has been treated in at least one New York case.  JSO Associates, Inc. and Jerry Sunshine v. Edward Price, Global Trading Inc., Congeladora Del Rio, S.A., de C.V. and Sandra Price, as the Executrix under the Last Will and Testament of Arthur Price, Deceased, 2008 NY Slip Op 30862(U), March 18, 2008.

Jerry Sunshine, a produce broker, aided Edward Price, his wife’s cousin, with the sale of Price’s frozen fruit distributorship. Sunshine thought he was going to be paid for his work with a finder’s fee for locating a purchaser for Price. Price believed differently. Sunshine sued Price.  He based his claim on the substance of an email he received from Price. Price attempted to have the lawsuit dissolved on numerous grounds.  One reason was that the statute of frauds necessitates any written contract to be signed by the parties. While electronic signatures may satisfy the “written signature” requirement, in this lawsuit the court concluded that in settings “where there is no dispute as to the source and authenticity of the e-mail, the e-mail is ’signed’ for the purposes of the statute of frauds.” The court, therefore, denied Price’s motion to dismiss because his name distinctly appeared in the email as the transmitter.

In other words, the court decided that an email signature is indistinguishable from a manual signature.  It makes a binding contractual obligation on the the person signing the email.  When there’s no difference of opinion as to the author and genuineness of the email, the email is reckoned signed for the purpose of creating an enforceable contract.

Thus, as a functional matter, when you’re talking terms of any agreement by email, be mindful that what you write in that email may in many contexts make a binding contract.  To get around the inference that your signature in an email is creating a contract, you should supply a disavowal to your email signature.  Something similar to the following statement should be enough.

“Unless expressly declared in this email, nothing in this email should be construed as a digital or electronic signature or writing.”

Copyright 2008 by Harvey L. Cox, NoLegalese.com