Page 40 - Q&A

scanned or electronically stored versions, are all feasible formats for legally
binding contracts and are enforceable.

Contracts are now very commonly executed electronically, with one person
signing and transmitting the contract in some form to the other, who then
signs and transmits a countersigned version back. It should also be kept in
mind that it is possible and legally valid to sign a contract in counterparts, thus
having separate agreements, each signed by a party to the contract, with
each signed copy together forming a valid and binding contract. This means
Commercial constitutes signing?
parties donot have to be in each other’s presence to sign a contract. But what

Besides the accepted signing by hand with a writing tool on paper, the legal
position on what qualifies as other forms of signatures has also been expanded
by the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”),
which confirms that digital communications are no less legally valid than
paper-based communications. The ECTA therefore allows for the use of electronic
signatures or “digital signatures” as long as certain requirements are met.

The ECTA describes an ordinary electronic signature as data attached to,
incorporated in, or logically associated with other data and which is intended
by the user to serve as a signature. According to the ECTA, both ordinary and
advanced digital signatures may be used in respect of transactions, depending
on the circumstances. The following are four examples of what could constitute
a digital signature:
• A stylus or your finger is used to draw your signature on a device that
allows for this. This can be done on a touch screen device (like a tablet or
a smartphone).
• Where you upload an image/photo of your handwritten signature.
Taking a photo of your handwritten signature on a piece of paper and
uploading it to the correct place in the applicable document.
• Using your cursor or mouse to draw your signature. There are a number of
programs that allow for the drawing of a signature in this way.
• Typing your signature on your keyboard.

Most agreements can be signed electronically, although there are certain
limited exceptions like a will, which is required by law to be signed by hand.
If you are going to make use of an electronic signature, such as by taking a
photo of your signature and using this, precautionary measures should be taken
to keep it safe and secure and avoid it being used without your knowledge.
There are also a growing number of software products that can facilitate digital
signatures between parties and may be worth investigating.

Lastly, it is prudent to check the variation provisions of existing contracts as they
may prevent amendments by way of an electronic signature or data exchange.
Despite the growing range of options for concluding and amending contracts,

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