ASK & DISCUSS INDEX

7 years, 3 months ago - Lee 'Wozy' Warren

There's a number of online document signing sites that do this securely - namely, e-sign, hellosign, and docusign to name a few. I'm not recommending these, just a few I've heard of and that can be easily found doing a goodle search.

7 years, 3 months ago - John Lubran

Contract law is a funny thing. It's not about procedures or statutes or carefully laid out lawyer prepared documents per se; even though those things ought not be ignored and have force in law. Contract are Common Law instruments. An agreement is deemed a contract if it is unassailaby clear, lawful and enforceable. Such may not be enforceable if it is unlawful under Common Law, illegal under statute or unreasonable (another common law determination much but not entirely found by precident). A verbal agreement or even a handshake can create an enforceable contract.

People often bemuse themselves and other about contracts. Ultimately where an agreement is challenged the issue is about proving it's actual existence and the detail of it's terms and conditions. That's why we like it written, signed and witnessed. Proving intent is everything. A written contract 'wet signed' by all parties present is the strongest instrument of proof when well written. Below that comes written agreements where the parties sign the same document remotely. Good example is the Consumer Credit Agreement one makes with a bank when getting a credit card. There's been a few cases where the borrower has successfully argued that the agreement, whilst proving his debt, was not enforceable because the terms and condition referred to in the agreement were not actually written into the body of the wet signed paper agreement but a separate document. These cases changed the way banks now operate. (Some of you older folk with credit agreements made in the nineties or before are very likely to have such unenforceable agreements)

Perhaps of more pertinence to Ray though is an example of a case I'm currently working on where a friend has provided a service to a company under terms that have only been informally agreed over a number of email conversations. Having provided the service to the company that company only wants to pay my friend less than half the sum informally agreed, arguing spurious reasons. We've had to trawl through about sixty emails from which there's manifest evidence proving clear intent of agreements. My friend can and will be able to prove an enforceable agreement in court. So with Ray's case, whilst electronic signatures are more vulnerable forgery and shenanigans it's the whole context of the agreement in terms of all the recorded communications between the parties and any marketing, publicity or recorded offers manifest that ought to provide proof of intent. If no such coroberating evidence is manifest then caution is required. Emails emminating from a consistent train of source have now become almost as viable as faxes. (The fax is still much used in law because of it's deemed physical integrity).

The more complex and detailed an agreement is the more it demands written and wet witnessed record. But where the issues are more straightforward the easier it is to prove an enforceable agreement by a record of diverse context.

Having said all that, many carefully constructed contracts contains unenforceable clauses that can render the entire thing worthless.

7 years, 3 months ago - Ray Brady

Many thanks gentlemen, very greatly appreciated.

7 years, 3 months ago - John Lubran

Just to underline the issue further; I've just been asked to look at some contractual documents drawn up by a solicitor which became subject to debate. This resulted in the commissioning of a barristers writen council. Not only was the solicitors contract document utterly unenforceable and unlawful but the barristers opinion was so expensively useless and non secitur it might well have been written for an entirely different case!

There's a lot of it about.