![]() ![]() A signature, contract or other record relating to such transaction may not be denied legal effect, validity or enforceability solely because it is in electronic form.Accordingly, this article will summarize certain relevant provisions of E-SIGN as they may be applicable to real estate documents. While E-SIGN explicitly provides that it does not preempt state law to the extent that such state law incorporates the uniform provisions of UETA without modification, generally, E-SIGN may be used as the guideline for crafting an enforceable contract because (a) the relevant provisions of E-SIGN and UETA are almost substantively identical and (b) to the extent any state law modifies the uniform provisions of UETA or conflicts with E-SIGN, such provisions are preempted by E-SIGN. Accordingly, contracts which would otherwise be enforceable if an original was executed and delivered, should generally be enforceable if executed electronically.įor practical purposes, the enforceability of electronic agreements is governed by the substantive terms of E-SIGN. ![]() Given this electronic reality, it is important to step back and examine whether, and under what circumstances, contracts executed via the internet or otherwise are enforceable under applicable federal and state laws.įor those readers who are bottom line oriented and don’t really want to know how the sausage is made, the answer to the question of whether real estate contracts negotiated and executed electronically are enforceable, is that, subject to general contract law governing enforceability, the federal Electronic Signatures in Global and National Commerce Act (“E-SIGN”) and various related state laws, the vast majority of which are modeled after the Uniform Electronic Transactions Act (“UETA”), provide that neither a signature nor a contract may be denied legal effect merely because they are in electronic form. The expression that something will be completed “before the ink dries” is largely anachronistic since most documents never make it from email onto a printer. From a real estate perspective, virtually all documents other than those that are being recorded are exchanged electronically. ![]() Increasingly, and not surprisingly, more and more transactions are being created, negotiated, finalized and executed electronically. ![]()
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