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Jersey - Use of electronic signatures, some practicable thoughts

09/09/2021

Electronic signatures are becoming the norm. Below are some of Comsure’s views and thoughts

Outside of Jersey

  • Watch out for documents governed by the laws outside the Channel Islands,
  • It will be necessary to check with legal counsel in the jurisdiction whose laws govern the document to ensure that the use of electronic signatures is permissible in that jurisdiction.

In Jersey

  1. Generally, the laws of Jersey allow contracts to be formed by electronic means.
    • The primary relevant legislation in Jersey is the Electronic Communications (Jersey) Law 2000, as helpfully amended in October 2019 by the Electronic Communications (Amendment of Law) (Jersey)
  2. However, there are a small number of legal documents where electronic signatures will not be valid.
    • Wills, contracts relating to land in Jersey, and certain powers of attorney will, it seems, still require "wet-ink" signatures because of the paper-based registry systems.
  3. Where an enactment requires a person to provide a signature (for example, on a new memorandum of association, upon formation of a Jersey company),
    • They will meet that requirement concerning electronic communication if:
      1. A method is used to identify the person and
      2. To indicate the person's approval of the information communicated.
    • And in the case of a signature required by States of Jersey entity or a person acting on behalf of a States entity (and maybe certain other parties), the requirement will be met only
    • If the entity consents and
    • Any information technology requirements specified by the entity are met.

Signature protocols In Jersey

  1. There is no legal distinction between exchanges of emails, application of signatures using specialist apps, copying, snipping or scanning and pasting of pdf signatures into pdf docs, typing in of names in BOLD CAPITALS instead of signatures and so forth.
  2. Any of these methods may be valid, binding and enforceable provided
    • that the communications between the parties and the intention to create a formal contract are clear, and
    • the parties have not otherwise agreed between them that contracting by electronic means will not be sufficient.
  3. That said, our view is that best practice would involve

More generally, the following points may be relevant and worth considering before entering into contracts electronically:

  1. Ensure that there are no provisions within the Memorandum and Articles of Association/Incorporation of the appropriate company
    • Which intentionally or inadvertently require wet ink signatures, or
    • Otherwise, restrict the company's ability to enter into contracts by electronic means or generally e-sign documentation (including any resolutions in writing).
  2. Consider
    • Expressly authorising the authorised signatories to enter into contracts and/or to e-sign documentation including any resolutions in writing by any electronic means, and
    • Also adding a provision allowing signatories and/or the company to appoint attorneys by power of attorney to execute documentation (in case wet signatures are required for any reason).
  3. Are you/some else witnessing a signature?
    • The witness should be physically present at the time of the signatory e-signing the relevant document, and
    • Should add their e-signature using the same system.

JERSEY COMSURE SERVICES