e-Signatures in a COVID World
February 25, 2021 By Nancy J. Goodiel
The Uniform Electronic Transactions Act, found at Virginia Code § 59.1-479 et. al., defines an 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.” See Va. Code Ann. § 59.1-480. The Uniform Electronic Transactions Act permits Electronic, or E-Signatures, when each party “has agreed to conduct transactions by electronic means.” See Va. Code Ann. § 59.1-483. Any agreement to conduct a transaction by electronic means is determined based on the context and surrounding circumstances of the specific transaction, including the parties’ conduct. Id.
An E-Signature is valid and enforceable when there is evidence of the signatory’s intent to execute the electronically signed agreement. Such evidence may include the signatory’s actions or conduct, including typing the name of the signing party into the electronic agreement. Other conduct that may be considered evidence of a party’s intent to execute an electronic agreement is where the signatory signs, or “wet ink’s,” a document and then scans the signed agreement to another party or person. A court will likely find that an E-Signature is valid and enforceable as long as the signatory’s intent to sign the agreement can be corroborated based on the circumstances of case. Such corroboration would include emails and text messages from the signing party demonstrating their intent to sign the agreement electronically.
Virginia Code § 59.1-489 also allows for the electronic notarization of signatures. This means that both the notary and signatory are permitted to use Electronic Signatures when executing an agreement. The notarization process still requires that a signatory appear before the notary when executing the document in question. Under the Uniform Electronic Transactions Act, however, the notarization process can be conducted remotely using audio-visual technology to satisfy the appearance requirement.
Despite Virginia’s adoption of the Uniform Electronic Transactions Act, some Virginia jurisdictions and courts may still require “wet ink” signatures. Therefore, it is important to check the specific court’s local rules related to Electronic Signatures and Electronic Notarization before signing or accepting an electronically signed agreement.