eSignatures
The Business Law Committee has published guidance on the current use and adoption of electronic signatures.
This note should be read in conjunction with the Updated Guidance Note Regarding E-Signatures, Electronic Contracts and certain other Electronic Transactions dated May 2022 (the Guidance Note) published by the Business Law Committee. It is not intended to be a replacement or an adjustment of the position set out in the Guidance Note. It is to update members on the current use and adoption of electronic signatures.
In the Guidance Note, the Committee identified particular barriers to use and items for consideration in relation to e-signatures, which should be considered in each instance. The Committee wishes to highlight the following to practitioners.
Diverging approaches
There are diverging views between firms in respect of the use of e-signatures on certain documents, in particular, documents that are required to be signed in the presence of a witness, e.g. Deeds.
Absence of judicial guidance
The usage and status of e-signatures have not been considered by the Irish courts, and there is therefore an absence of judicial guidance to assist practitioners.
Importance of early dialogue
Given the diverging views, the absence of judicial guidance, and the other barriers to adoption of e-signatures highlighted in the Guidance Note, practitioners should, as early as possible in a transaction, discuss and agree the planned method of execution of the documents with the solicitors for other parties to the transaction.
If it is proposed that any documents will be electronically signed, the parties should carefully consider and agree the type of e-signature that is to be used, e.g. simple, advanced or qualified electronic signature.
All parties must consent to e-signatures
Section 13 of the Electronic Commerce Act 2000 makes the use of an e-signature subject to the consent of the parties. Therefore, neither parties nor their solicitors can insist on a document being electronically signed or that the other party accept an electronically signed document.
The future
The Committee is conscious of the issues restricting full adoption of e-signatures. A submission to the Government is in preparation, advocating changes to the underlying legislation to better facilitate the use of e-signatures on documents. Updates on this will be provided in due course.
