From: Keith Rowley <keith.rowley@unlv.edu>
To: Matthew P. Harrington <matthew.p.harrington@umontreal.ca>
Date: 05/08/2021 18:57:43
Subject: Re: Is a text message a signature?
From my U.S. perspective (informed by the Restatement (Second) of Contracts and the uniform version of the UCC), it seems to me there are two distinct issues involving contracting or agreeing (or modifying an existing contract or agreement) by texting.  First, can a non-"Brooklyn 99" text serve as an objective manifestation of assent to form a contract or agreement?  Second, can a non-"Brooklyn 99" text serve as a signed writing (or authenticated record), or a compositable (apologies for the tortured terminology) portion thereof, for purposes of satisfying the applicable statute of frauds.  

The answer to the first question should be yes, if the parties' course of negotiation, their prior dealings with one another, or a common practice in the trade or the place of which the parties should be aware recognizes a text message as legitimate form of manifesting one's (objective) intent.  In other cases where none of the foregoing factors are present or where two or more point to different conclusions, then the answer is less clear -- but becomes pedantic if the parties proceed to behave as if they have a contract or agreement.

As for the statute of frauds question (and I speak only to the statutes of frauds that conform to the Restatement (Second) formulation or to UCC 2-201, UCC 2A-201, or 9-203(b)(3)(A), recognizing that some jurisdictions have stricter writing requirements for, say, conveying an interest in realty), the purpose of the statute of frauds is merely to bar the judicial enforcement of a purported contract or agreement for which the statute requires a signed writing/authenticated record and the party seeking to enforce the purported contract or agreement can prove neither the present or former existence of one or more writings or records that satisfy the statute nor the applicability of any exception to the relevant statute of frauds. Satisfying the statute of frauds does not prove the terms, enforceability, or breach of the purported contract or agreement.  The admittedly broader-than-Blackstone definitions of "signed" and "writing" in UCC Article 1, which apply to contracts to sell or lease goods, must be read together with the "some writing sufficient to indicate that a contract for sale (or a lease contract) has been made between the parties" language in 2-201 (or 2A-201).  Recalling that the UN Convention on Contracts for the International Sale of Goods has no statute of frauds at all (and being aware that the "authenticated record" requirement baked into and separately defined by the 1999 revision to UCC Article 9, which will serve as a template for future amendments/revisions to those sections in Articles 1, 2 & 2A that currently define or require "signed writing"), I have no particular qualms about courts holding that one or more writings that collectively satisfy R2K 131 or UCC 2-201 or 2A-201 get over the "signed"/"authenticated" barrier with letterhead, a signature stamp, a fax banner, an email address or signature block, a scrawled "X," etc. -- provided that the proffering party prove that the party to be charged used the letterhead, signature stamp, fax banner, email address or signature block, scrawled "X," etc. "with present intention to adopt or accept a writing" (which, again, isn't necessarily the same as having present intention to be bound by the terms contained in the writing).

Best wishes,

Keith

  
Keith A. Rowley
William S. Boyd Professor of Law
William S. Boyd School of Law
University of Nevada Las Vegas
4505 S. Maryland Parkway, Box 451003
Las Vegas, NV 89154-1003
Tel: (702) 895-4993 [v-mail only until 8/24/21]

Elected Member, American Law Institute
Commissioner, Uniform Law Commission
Consumer Fellow, ABA Business Law Section, Consumer Financial Services Committee


On Thu, Aug 5, 2021 at 9:33 AM Matthew P. Harrington <matthew.p.harrington@umontreal.ca> wrote:
Agree. This is why I've always had a problem with Article 2 (not applicable in Canada of course) allowing a piece of letterhead to be used as a confirmation for purposes of the statute of frauds.

Sent from my Verizon, Samsung Galaxy smartphone

From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Sent: Thursday, August 5, 2021 11:57:43 AM
To: Hedley, Steve <S.Hedley@ucc.ie>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: Is a text message a signature?
 

I don't think every text does day "This is me, and I wrote this". It merely says "This comes from my smartphone". For all you know I might have left the instrument in the hands of my secretary, or wife, and told her to deal with urgent queries while I worked on getting the accounts in to the taxman. Or any other number of plausible scenarios. -Andrew

On 05/08/2021 16:42, Hedley, Steve wrote:
As to a covert recording you have a point, but there doesn't seem to be anything covert about the records here.  Doesn't every text impliedly say "This is me, and I wrote this"? Requiring something in addition to the actual words of the text seems to require the promisor to say it twice, whereas the whole point of a solemn declaration is that once is enough.  As to whether sufficient solemnity has been shown, I think that is a broader question than whether what was written can be regarded as a signature.  There's some hint of this in the Golden Ocean case, where the e-mails were in very informal terms indeed (the parties being good friends) but there was perfectly adequate evidence that their agreement was meant to bind, and their first-name sign-offs were held to be "signatures". 

From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: Thursday, August 5, 2021 4:16 PM
To: 'Andrew Tettenborn' <a.m.tettenborn@swansea.ac.uk>; Hedley, Steve <S.Hedley@ucc.ie>; obligations@uwo.ca <obligations@uwo.ca>
Subject: RE: Is a text message a signature?
 

[EXTERNAL] This email was sent from outside of UCC.

Andrew must be correct – it is no answer to a lack of signature that I have video footage of you agreeing to (but not signing the contract) and a covertly obtained tape of you admitting you agreeing the same for good measure. Its not simply a question of proof, but of the solemnity of signatures (see e.g. the rule in L’Estrange v Groucob, which has nothing to do with proof about reading the terms or the like and instead everything to do with making a very particular sort of commitment, even if the terms haven’t been read).

 

From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Sent: 05 August 2021 16:12
To: Hedley, Steve <S.Hedley@ucc.ie>; obligations@uwo.ca
Subject: Re: Is a text message a signature?

 

I'm not so sure about this. It seems to me the requirement for signature means more than a requirement for a written document that we know beyond a peradventure that the obligor penned. The obligor must have done something extra to say, "This is me, and I wrote this."

Suppose I have a pad of pretty pink post-it notes with my name and phone number on them, given to me by a previous misguided girlfriend. On one of these I write a few words to you acknowledging the debt, but with nothing else at all on the note, and stick it to your car as I'm walking past. My own view is that that ought not to count as a signature (unlike the rather more complex rigmarole gone through by the man in Bassano v Toft) It seems to me a text message is difficult to distinguish from this.

But maybe I'm missing something, with a lockdown-addled brain.

 

Andrew

 

On 05/08/2021 15:18, Hedley, Steve wrote:

This seems to be part of a general trend of taking a broad view of "signature" in e-contexts so long as there is adequate evidence that the mark of assent was genuine - similar to Bassano v Toft [2014] EWHC 377 (QB) (paras 39-46) , where clicking on an "I Agree" button was also held to be a 'signature'. Wisely, the judges concerned define the principle in vague terms, in the hope that it will still apply even if the technology develops in unexpected directions (as no doubt it will). 

 

From: Matthew P. Harrington <matthew.p.harrington@umontreal.ca>
Sent: Thursday, August 5, 2021 2:12 PM
To: obligations@uwo.ca <obligations@uwo.ca>
Subject: Is a text message a signature?

 

For those who maintain casebooks or other course materials, there is a recent Ontario case (Divisional Court) on whether a text message can constitute a signature.  It arises in the context of a statute of limitations defence, but the principles seem applicable to contract or other contexts.  It’s a nice, short exposition of the problem and why a text should be considered a signature in certain cases (see paras 42-50).  The question of authenticity was solved not only by the fact that the text bore the telephone number of the sender, but also the “International Mobile Equipment Identifier (IMEI) number” was also embedded in the data of text itself and provides a unique digital signature for every phone.

 

Might be interesting as a footnote or squib in student materials.  I know my students invariably ask about texts when we do statute of frauds.

 

The case is here:

 

https://www.ontariocondolaw.com/wp-content/uploads/sites/841/2021/07/2021onsc3477.pdf

 

Regards.

 

Harrington

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Andrew Tettenborn
Professor of Commercial Law, Swansea University

Institute for International Shipping and Trade Law
School of Law, University of Swansea
Richard Price Building
Singleton Park
SWANSEA SA2 8PP
Phone 01792-602724 / (int) +44-1792-602724
Cellphone 07472-708527 / (int) +44-7472-708527
Fax 01792-295855 / (int) +44-1792-295855

Andrew Tettenborn
Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe

Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
Ysgol y Gyfraith, Prifysgol Abertawe
Adeilad Richard Price
Parc Singleton
ABERTAWE SA2 8PP
Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
Ffôn symudol 07472-708527 / (rhyngwladol) +44-7472-708527
Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

 


ISTL

See us on Twitter: @swansea_dst
Read the IISTL Blog: iistl.wordpress.com
My publications can be found here and here and here
Member of the Heterodox Academy and member and adviser of the Free Speech Union

 

 

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Andrew Tettenborn
Professor of Commercial Law, Swansea University

Institute for International Shipping and Trade Law
School of Law, University of Swansea
Richard Price Building
Singleton Park
SWANSEA SA2 8PP
Phone 01792-602724 / (int) +44-1792-602724
Cellphone 07472-708527 / (int) +44-7472-708527
Fax 01792-295855 / (int) +44-1792-295855



Andrew Tettenborn
Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe

Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
Ysgol y Gyfraith, Prifysgol Abertawe
Adeilad Richard Price
Parc Singleton
ABERTAWE SA2 8PP
Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
Ffôn symudol 07472-708527 / (rhyngwladol) +44-7472-708527
Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855




ISTL

See us on Twitter: @swansea_dst
Read the IISTL Blog: iistl.wordpress.com
My publications can be found here and here and here
Member of the Heterodox Academy and member and adviser of the Free Speech Union



Disclaimer: This email (including any attachments) is for the use of the intended recipient only and may contain confidential information and/or copyright material. If you are not the intended recipient, please notify the sender immediately and delete this email and all copies from your system. Any unauthorized use, disclosure, reproduction, copying, distribution, or other form of unauthorized dissemination of the contents is expressly prohibited.