Signing of a Legal Document
Legal documents generally require signatures to have binding effect.
There are also rules on how and who can execute certain types of legal documents.
There is no prescribed form or type of signature which must be used to be legally effective, as long as it demonstrates the intention of a person to authenticate the document.
We take a look at some of the nuances of the different types of documents you may have to sign.
The basic components of a contract is that there is an offer by one party which is accepted by another in return for a form of consideration, with certainty of terms and both parties intend to be legally bound by the agreement.
Ideally the terms of the agreement should be recorded in a written document signed by both parties to confirm their intention to enter into a legally binding contract.
Oral and unsigned contracts can be binding in certain circumstances if there is clear evidence of that agreement and reliance on it, but they tend to be risky and much fought over in the courts so should only be used with great caution.
Certain contracts though have specific requirements under law. For example under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, a contract of sale of land in England and Wales must be in writing and signed.
If signing on behalf of an organisation (company, limited liability partnership, etc), that person must have authority to sign and bind the organisation.
The Law Society has published a Q&A guide on “how to use electronic signatures” (6 Jan 2021) given the increased use of electronic signatures, especially during the pandemic.
One example is set out below:
Q. Can a simple contract be agreed by attaching a copy of an email and indicating “signature”’/agreement in the body of the e-mail?
A. In some cases, yes. This will be effective in the case of a contract that is not required to be executed as a deed (assuming there are no other formalities relating to execution of that contract) and does not need to be filed with a registry. It will be appropriate to include in the email a statement confirming that the email constitutes a signature of (or agreement to) the attached document, together with the signatory’s typed name or email signature. An alternative is for a signatory to type their name into the ‘soft copy’ contract – this will be effective as an electronic signature.
Witness statements & affidavits
These are documents that are normally prepared and executed in court proceedings.
An affidavit is the testimony of the person who swears it before a person authorised to administer affidavits, such as a solicitor. An affidavit will contain a jurat in the following form:
“Sworn at [FULL ADDRESS]
Commissioner for oaths [OR AS APPROPRIATE]”
A witness statement is the equivalent of the oral evidence which the maker would, if called, give in oral evidence and only requires a signature.
A witness statement must be verified by a Statement of Truth in the following form:
‘I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’
The use of affidavits and witness statements as evidence is set out in the Civil Procedure Rules, Practice Direction 32
Section 1 set outs when one or the other should be used:
- Evidence at a hearing other than the trial should normally be given by witness statement.
- Affidavits must be used as evidence in the following instances:
(1) where sworn evidence is required by an enactment, rule, order or practice direction, and
(2) in any application for a search order, a freezing injunction, or an order requiring an occupier to permit another to enter his land.
- By rule 81.4(1), unless and to the extent that the court directs otherwise every contempt application must be supported by written evidence given by affidavit or affirmation.
- If a party believes that sworn evidence is required by a court in another jurisdiction for any purpose connected with the proceedings, he may apply to the court for a direction that evidence shall be given only by affidavit on any pre-trial applications.
- The court may give a direction under rule 32.15 that evidence shall be given by affidavit instead of or in addition to a witness statement or statement of case:
(1) on its own initiative, or
(2) after any party has applied to the court for such a direction.
This is a document which is executed with a certain formality (e.g. witnessed) over and above a simple signature. Unlike contracts, they can be enforced even if no consideration is provided.
Common types of documents which must be executed as a deed are transfer of land, wills, mortgages, and leases.
There has been much change introduced recently in relation to the execution of deeds in light of the pandemic particularly in respect of wills and land registry documents, which I considered in my previous blog.
Guidance is also contained in the Law Society Practice Note (21st July 2016 updated in May 2020)
A signature is an important legal tool which has important legal implications and you should not affix yours without due consideration for the consequences.
As the world continues to move into a digital age, it is important that safeguards are in place to avoid abuse and unintended consequences of electronic signatures.