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The signature requirements pertain the legal or contractual requirements in order to make a legally effective declaration of intent or a legally binding contract.
Possibility to replace a specific formal requirement of making a binding declaration of intention
Electronic signatures may be used in the vast majority of circumstances.
Federally, electronic signatures are recognised under the Electronic Signatures in Global and National Commerce Act (ESIGN), and each state and territory has adopted some version of the Uniform Electronic Transactions Act (UETA) or similar laws that permit e-signatures.
Under ESIGN, a “transaction” is an action or set of actions relating to the conduct of business, consumer, or commercial affairs between two (2) or more persons, including any of the following types of conduct—(A) the sale, lease, exchange, licensing, or other disposition of (i) personal property, including goods and intangibles, (ii) services, and (iii) any combination thereof; and (B) the sale, lease, change, or other disposition of any interest in real property, or any combination thereof.
Under UETA, a “transaction” is an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or governmental affairs. That said, UETA has been implemented differently in different states, and accordingly certain documents that may be e-signed in some states may not be e-signed in others.
Under state laws, certain types of agreements may still need to be in writing and executed by ‘wet ink’ signatures.
Presence of any specific formal requirements to effectively conclude a loan agreement
Typically, an original written signature is not required for most United States contracts, although certain types of contracts may need to be in writing pursuant to state statutes of frauds, and certain types of contracts do not permit electronic signatures. A loan agreement may need to be in writing or have a wet ink signature if it contains provisions that do not allow for electronic signatures. For instance, some states do not permit powers of attorney, notarised documents or allonges to paper notes to be executed by electronic signature, although electronic signatures are increasingly permitted, a trend that accelerated during the COVID-19 pandemic.
Process of conclusion of a contract by using a qualified electronic signature in practice
Practically, most e-signatures are performed through services such as DocuSign and VeriSign.
Legal consequences to a contract in case of not fulfilling formal requirements
This differs significantly depending on the governing law of the contract, the states where the parties were located and the type of contract. In the worst-case scenario, an agreement could be considered unenforceable or never having been entered into.
Usual practice of signing contractual agreements in the B2B sector
Execution of counterparts via .pdf is commonplace, and execution through more formal digital signature service providers such as DocuSign and VeriSign is becoming increasingly more commonplace.
Usual practice of signing contractual agreements in the B2C sector
Execution of counterparts via .pdf is commonplace, and execution through more formal digital signature service providers such as DocuSign and VeriSign is becoming increasingly more commonplace. Click-through agreements or agreements contained within website or app terms of service are also commonplace.