From: Barry Allan <barry.allan@otago.ac.nz>
Sent: Friday 6 August 2021 03:40
To: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations@uwo.ca
Subject: Re: Is a text message a signature?

This decision runs directly against earlier decisions involving emails and facsimiles. The Court in J Pereira Fernandes SA v Mehta [2006] EWHC 813 at [29] held that the information inserted into an email to identify the sender did not perform the function of indicating an intention to be bound. The New Zealand High Court came to the same conclusion in Welsh v Gatchell [2009] 1 NZLR 241 at [46] in respect of a sender's name printed automatically on a fax. On the logic of these cases, someone would have to deliberately include their name in the text to satisfy the objective behind the need for a signature.

I might be one of the few people around who has written specifically on this, in my article "The Validity of Informal Guarantees" http://www.nzlii.org/nz/journals/OtaLawRw/2013/3.html

Barry

From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Sent: Friday, 6 August 2021 3:11 AM
To: Hedley, Steve <S.Hedley@ucc.ie>; obligations@uwo.ca <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

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). 

 

Steve Hedley

9thlevel.ie

private-law-theory.org

ssrn.com/author=32978

 

 

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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