Examples of E-sign's Effect

What happens under E-sign if:

• I send a required notice to a person by email and the person claims to have never received it?
  If a law requires verification or acknowledgement of receipt, then the notice will be ineffective under E-sign unless the method you used to deliver the notice provided you with that verification or acknowledgement. If verification or acknowledgement of receipt is not required, the problem falls outside of E-sign and would need to be handled under existing law. It would be good practice to ensure that you can establish the content of any emailed notice and can prove that you sent the email, that the address was correct, and that your computer system was functioning properly.
  
  
• My copy of an electronic contract is different from the copy retained by the other party to the contract?
  If a law other than E-sign requires the contract to be in writing, the enforceability of the contract may be jeopardized. Under E-sign, a contract that is otherwise required to be in writing may be held unenforceable if the contract is not in a form capable of being accurately reproduced by all parties. If the contract is not otherwise required to be in writing, you still may have difficulty admitting the contract into evidence as an original contract. Under E-sign, a person may satisfy a statute that requires a document to be in its original form if, among other things, the document is in a form that is capable of being accurately reproduced for later reference. Before entering into any electronic contract, it would be good practice to document that each party's computer system is capable of retaining and accurately reproducing the contract.
  
  
• I include all warnings that are required by law to be above the signature line on a contract as a separate electronic attachment?
  You will be in violation of the law. E-sign does not affect the proximity required by any law with respect to a warning, notice, or disclosure.
  
  
• I use an automated system, rather than an individual, to accept orders from customers?
  You will be entering into enforceable agreements. E-sign authorizes the use of an electronic agent to enter into contracts, as long as the electronic agent's actions are attributable to the person bound by the contract. You must take special care, though, to ensure that your electronic agent fulfills any special requirements relating to consumer transactions.

Return to "Electronic Commerce Under the Federal E-sign Legislation"

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