Globally, many brick and mortar enterprises are shutting their physical office doors due to the outbreak of the COVID-19 virus. This has forced employees of these businesses to transition to the new norm of remote working. Similarly, clients and other stakeholders have had to adjust to facilitate this recent change.
Employees working from home may not have facilities available to allow them to print and execute necessary documents to allow for the efficient operation of the business. Likewise, transactions with clients, and, in particular cross border transactions, are in danger of being stunted by virtue of restrictions in movement worldwide, thus limiting the ability of face to face meetings for execution of agreements. Even courier service providers which would facilitate delivery of physical copies of original signed agreements have been affected. Business owners must, therefore, be creative and consider digital technologies to enable them to offset some of the effects of these restricted social interactions on their businesses.
Electronic signatures (e-signatures) and electronic contracts (e-contracts) are mechanisms which may be beneficial to keeping the wheels of a business turning, allowing persons to execute and send documents locally and overseas without leaving their homes. The Electronic Transactions Act (the “Act”) allows for the legal recognition of e-signatures and e-contracts in Jamaica.
E-contracts
General principles of contract law dictate that valid contracts are formed where there is an offer, acceptance, consideration and intention to create legal relations. Many enterprises may be accustomed to formalizing an offer and acceptance by way of a physical agreement. However, the Act provides for a valid contract to be formed by way of an offer and acceptance of the offer expressed electronically.
As with all other transactions governed by the Act, in order to benefit from the formation of e-contracts, the parties must agree to conduct the transaction electronically. The agreement to conduct a transaction electronically may be express, however, the Act provides that agreement may also be determined by reference to the context and surrounding circumstances including the party’s conduct, except where a party is the Government.
E-signatures
An electronic signature is defined as information that is contained in, attached to or logically associated with, an electronic document; and is used by a signatory to indicate his acceptance or “adoption” (the word used in the Act) of the content of that document. It does not include any signature produced by a facsimile machine or by an electronic scanning device.
With the exception of the circumstances mentioned below, where a person is legally required to affix his signature in relation to any information, this requirement is taken to have been met where the information is given electronically and the following criteria are met:
a method is used to identify the person and to show the person’s approval of the information given;
having regard to all the relevant circumstances when that method was used, including any relevant agreement, the method was as reliable as was appropriate for the purposes for which the information was communicated;
if the signature is required to be given to the Government and the Government requires that the method used be in accordance with particular information technology requirements, the Government’s requirement has been met; and
if the signature is required to be given to a person other than the Government, that person consents to that requirement being met by using the method mentioned in paragraph (a) above.
An encrypted signature is presumed to fulfill the requirements of the Act if that signature is uniquely linked to the person whose signature is required; capable of identifying that person; created by using means that such person can maintain under his sole control; and linked to the information to which it relates in such a manner that any subsequent alteration of the information is revealed. An encrypted signature refers to an electronic signature that is encrypted by means of a private key or other encrypted signature creation device.
Exceptions
There are certain categories of transactions which cannot be conducted by electronic means as the Act clearly indicates that it does not apply to them. These include: (i) the making, execution, alteration or revocation of a Will or other testamentary instrument; (ii) the conveyance or transfer of real property or any interest in real property; (iii) the creation, variation, performance or enforcement of any trust or power of attorney; and (iv) any procedure governed by the Civil Procedures Rules, 2002, or by rules of court made pursuant to any law.
Businesses and government agencies should assess their processes to see how best they can take advantage of the options made available to them due to modern technology, in order to efficiently provide products and services to their customers, whether or not they are working remotely.
Kerri-Anne Mayne is an associate attorney-at-law at Myers, Fletcher & Gordon, and is a member of the firm’s Commercial Department. Kerri-Anne may be contacted via Kerri-Anne.Mayne@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
