[2056] in cryptography@c2.net mail archive
Re: Legality of faxed signatures.
daemon@ATHENA.MIT.EDU (Perry E. Metzger)
Fri Jan 16 18:28:12 1998
To: "James A. Donald" <jamesd@echeque.com>
cc: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>,
cryptography@c2.net
In-reply-to: Your message of "Fri, 16 Jan 1998 12:56:35 PST."
<199801162056.MAA22646@proxy3.ba.best.com>
Reply-To: perry@piermont.com
Date: Fri, 16 Jan 1998 18:19:15 -0500
From: "Perry E. Metzger" <perry@piermont.com>
"James A. Donald" writes:
> A lawyer, whose name I have forgotten, arguing in favor of
> the legality of faxed signatures, asserted that if a
> signature was absolutely identical to another signature, this
> was grounds to believe that one signature had been imaged
> directly from the other.
In saying the following, I am operating entirely on my *understanding*
of the law. I am not a lawyer.
As has been said, signatures are not a means of authentication in
contracts. It is assumed in the law that paper signatures may be
forged, and a skilled individual can easily forge your signature or
mine.
A signature is evidence that an individual had intent to agree to a
contract, not absolute evidence that it was they and only they who
could have signed it. Except for contracts covered by the Statute of
Frauds and similar things, contracts require no signature or written
instrument, only the intent by both parties to enter into the contract
and the exchange of consideration -- *BUT* a written signed contract
is excellent evidence of the intent being truly present. A signature
on a contract can be *any* mark -- an "X", a rubber stamp, a seal, you
name it. If you are illterate and put an "X" on contracts, there is no
presumption that your "X" is utterly unique and that no one else could
make a similar "X".
"Digital Signature" is a bit of a misnomer in this sense -- a digital
signature does something that a paper signature generally does not,
which is provide high quality evidence that the document is not a
forgery.
> Since these days, faxed signatures frequently *are* bit for
> bit identical, this would seem to render most faxed contracts
> invalid.
Why? If there is intent by both parties, sending a signed fax is
evidence that there was intent to enter in to the agreement. You
wouldn't have sent the contract with the signature affixed if you
didn't intend to enter into the agreement. Now, it may be true that a
fax is easy to forge, but the fax is NOT evidence against forgery, it
is evidence that, given that the fax was not forged, you knew you were
entering in to a contract by virtue of the fact that you affixed your
mark by whatever means.
Forgery has been possible for millenia, you know. No one believes
signatures to be proof against it.
> You also assert that faxed signatures are binding, *and* that
> one should follow up with actual physical documents.
>
> 1. These assertions seem contradictory.
No -- he's just being a lawyer. They believe in redundant language in
contracts and redundant activities "just to be sure"...
> If bit for bit identical signatures are binding, or are
> considered reasonable evidence of intention, then fraud is
> trivial.
Fraud is trivial now. Ever see a paycheck with "SIGNATURE ON FILE" or
a rubber stamp at the bottom? Those are legally valid, you know.
> If bit for bit identical signatures are not considered
> evidence of intent, if they are deniable, because of the ease
> with which anyone can copy them, then faxed signatures are
> mostly deniable.
Again, a normal signature is not proof that no forgery has occurred --
only proof that, absent a forgery, the person entering in to the
contract knew he was binding himself to the contract.
BTW, note that statute specifically requires a paper signed contract
for many kinds of contracts like real estate transactions. The Statue
of Frauds covers many such transactions.
And again, I Am Not A Lawyer. Hopefully a lawyer out there will
correct any misstatments I have made.
Perry
