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A cornerstone of the United States contract law is the general application of the statutes of fraud to contractual agreements. Emerging forms of electronic commerce and new types of contractual relationships have begun against the idea of defining the four corners of a contract. Many Obstacles in concerning contractual relationships arise with the spread of electronic commerce, in particular the determination of what a valid signature. Traditionally, the Statute of Fraud is a generic term describing various statutory provisions that deny enforcement of certain forms of contracts, unless they to be written and signed by the party to pay. The problem with this traditional idea of the statutes of fraud, as they relate to electronic commerce in order to determine whether the party with which the contract has actually "signed" the contract for the purposes of enforcement.
Various forms of legislation in the areas of Internet law have attempted to define and describe digital and electronic signatures for purposes of determining the enforceability. Generally there are two broad categories of signatures when dealing with electronic contracts.
1. Electronic signatures ( "e-signature")
2. Digital Signatures
I. Electronic signatures
The Uniform Electronic Transactions Act (UETA) defines an electronic signature as "electronic sound, symbol, or process to or in connection with an electronic record and executed or by a person with the intent of the record." UETA, § 2. Often referred to as "click-wrap" agreements, these forms of electronic signature is a broad acceptance of the enforceability of acts such as UETA and electronic signatures in Global and National Commerce Act (ESGNCA / "E-Sign") . These laws make it clear that contracts are binding through the exchange of e-mail or simply by clicking "Yes" to the Agreement, click on the issuing of permits, which we all accepted w ith all types of Internet transactions . Like UETA, which ESGNCA requires that consumers consent to the positive agreements and click, that the seller must offer the consumer a clear and conspicuous statement on the effect of the agreement to click, but parole evidence is rarely allowed to prove or disprove intent to contract. ESGNCA § 101 (c) 1 By simply clicking "I agree" presumed intent.
The widespread effect of electronic signatures is also available as a fully valid for the purposes of liability by the Digital Millennium Copyright Act. DMCA § 512 (3) (A) (i). As a relatively settled area of Internet law, it is important to understand the enforceability of electronic signatures, with or without intention manifests itself in the face of the Agreement itself, since these click wrap are presumptively enforceable, it is important to advise your clients about the potential dangers regarding the adoption of an online transaction without having to understand what they agree. Simply accepting these conditions you can with your customers the right to justice for the settlement of disputes, such as click on arbitration clauses are generally enforceable. Your customers will not be able to rely on the statute of fraud in order to demonstrate that there is no intention to contract. With electronic signatures, the intention is an objective standard, usually by a simple mouse click.
Digital Signatures II
Unlike electronic signatures, digital signatures are more often than not as a means for the detection of positive intention. The problems with the digital signature is not sufficient to inadvertent agreements, but rather from the security and confidentiality of digital signatures. In general, digital signatures are encrypted electronic signatures that a third party (often referred to as a Certification Authority) is authenticated as genuine. In contrast to the general electronic signature, a digital signature must be clearly and strictly under the sole custody of the party is used. Unlike electronic signatures, where a typed name, company, or even a logo can bind the party to be charged by its mere presence, digital signatures provide the agreement party a higher degree of safety and efficiency. The general types of signatures are not enforceable, such as a digital signature. Due to the authentication of a digital signature, it should be recommended that customers on the use of digital signatures for all high-profile or high liability electronic contract.
Digital signature only increase in use in the future, such as political parties, all transactions will be an increased level of security of information without the fear of accidentally agreeing to adverse conditions. Although there is an inherent fear of paperless transactions, especially with traditional practitioners and businesses, the use of digital signatures makes commerce faster, more secure, and efficient and should be recommended to clients when needed. The use of digital signatures is even more effective if it is in international trade so that it no longer necessary to fly abroad, to show intent to enter into a contract.
While understanding and zealously advising clients on the use of different forms of signatures for electronic commerce is important, it is also imperative to understand that we are still in the early years of a technological revolution, and that a portion of the effective advocate keeps up to date on developments in the law. Electronic and digital signatures are only the beginning. Advances in technology will soon be available for widespread use of biometric identification as a means to demonstrate the intention to contract. Principles of contract law will deal with the technology and the application of the Treaty and the principles of the statutes of fraud does not substantially alter their interpretation and application is safe.
This article was written by Nicholas J. Deleault, Pierce Law Center'07. Nicholas writes select legal articles for the law firm Goldstien and Clegg, a Massachusetts company Cyberlaw.
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