THE INTERNET has brought a new dimension to the law of contract. In light of a recent decision in England, it is now very important to consider whether an emailed document has been properly signed.

Legally, the majority of contracts could be formed without written documentation where there are no particular formal requirements and, in particular, no need for contracts to be signed or written.

The exception is the guarantee which must be in writing by virtue of the Statute of Frauds. If, however, it is made orally, there must be a memorandum or note evidencing the oral agreement, signed by the guarantor or someone authorised to sign on his behalf.

Under the Electronic Communications Act it would seem the signature may include a range of acts, ranging from printing a name to using a pseudonym, but the person must have intended by that act to have signed the document.

Previously, in a 1954 case, "signature" was defined as "the affixing on a document, whether by writing with a pen or pencil or by otherwise impressing in some way, one's name or "signature" so as personally to authenticate the document".

It is therefore not the physical manifestation that determines the signature but the authentication and intention of the person signing. The issue arose in a recent case – Nilesh Mehta v Pereira Fernandes – where the court held that an email header does not amount to a signature.

The case was on appeal from a summary judgment and winding-up order given to Fernandes who had supplied bedding products to a company of which the plaintiff was a director. Prior to the order, the plaintiff asked a member of staff to contact the defendant's solicitors by email.

The email offered a personal guarantee by the plaintiff together with a repayment schedule. There was nothing in the text that could have been described as a signature except that there was the plaintiff's email address as a header.

The defendant admitted the email was confirmed by telephone. The winding up was adjourned for 14 days but the plaintiff never signed any hard-copy agreement or paid any money to the defendant.

The defendant then sought to enforce the personal guarantee against the plaintiff, who submitted that for a guarantee to be enforceable, it had to be signed and that he had not signed any document. The plaintiff countered that the email address was a signature.

The issue was whether the email was signed. The court held that the key to deciding whether a document has been signed for the purpose of the Statute of Frauds was "intention", and it did not matter in what form the signature was made.

The court said it could be done by typing in your name or by some other method, but however formed, "its inclusion must have been intended as a signature". The question was whether the email address header was "incidental" to the document, or whether it was intended to be a signature.

The court held it was not a signature within the meaning of the Statute of Frauds. The email header is just an automatic process as it was "divorced from the main body of the text of the message" and therefore could not be considered part of the guarantee.

Though this scenario might not often arise, the case suggests that there should be some positive effort by the sender to sign the document. At least, it should show an intention to have the automatic signature to be a signature as part of the document.

It must be borne in mind that because the majority of contracts are not required to be in writing, there are no particular completion formalities; but email agreements, without more, could pose some difficulty. (EN)