As a result of the recent lockdown the ability to sign and exchange documentation has been affected. This note will look at requirements for the valid execution of documents, the challenges of signing in these uncertain times and some available options to overcome these challenges. This is a short summary of a fairly complex topic so please get in touch if you need specific legal advice in this area.
Documents Required to be in Writing
The general rule in Scots Law is that a contract does not need to be in writing. The exceptions to this are: missives and documents relating to the transfer of property; certain types of guarantee and a person making a will or becoming trustee of their own property.
Any contract which requires to be in writing will need to be signed by the parties to it.
Counterpart Execution and Delivery
In the present Covid-19 crisis, the parties to a contract are likely to be in several different places. Scots law now permits the execution of documents in counterpart, under the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015. This means that it is not necessary for all parties to sign the same document. Instead, each party can sign a separate document and, once the counterparts are brought together, these are treated as a single document. In order for the document to become effective, it must be delivered. In practice, and particularly in the present circumstances, the parties’ solicitors may agree to deliver the documents by exchanging them by email. Once delivered, this usually concludes the contract/agreement between the parties, with original documents following at a later date.
Self – Proving Status and Witnessing Requirements
A document will be validly executed without the parties’ signatures having been witnessed. However, in order for it to be ‘probative’ (also called ‘self-proving’) witnesses to the parties’ signatures will be required. A probative contract is one that is presumed to be subscribed by the contracting party or parties. This is beneficial in the event that one of the parties seeks to challenge the contract, as no further evidence is required to prove valid execution. In order to have self-proving status, on the face of the contract it must be clear that: it was subscribed by the party or parties; it was signed by a witness; and the name and address of the witness is clearly stated. The date and place of execution should also be noted.
Acting as a Witness
The relevant legislation states that a person is NOT permitted to act as a witness if: they are a party to the contract (or otherwise have an interest in it); they do not know the person whose signature they are witnessing; they are under the age of 16; or they otherwise lack capacity (ie they are not mentally capable of acting as a witness).
Witnessing during the Covid-19 Lockdown
Most people will be in lockdown with close family members, which could present difficulties if a document requires to be signed. It might be that a spouse or family member is party to (or has an interest in) the contract, which means that they will be prevented from acting as a witness. The legislation does not prevent a spouse or family member from acting as a witness, providing they are not a party to the contract. It is usually best practice to seek an independent witness if possible but in the present circumstances it will generally be acceptable for a family member to act as a witness, provided that they are over 16 and have capacity to enter into a contract.
Another option is to arrange for a video call in which the signing of the document is witnessed remotely. Witnessing in this manner is currently permissible in Scotland, which is different from guidance being issued in England on this matter. It should be noted that any document which requires to be notarised by a Notary Public cannot be witnessed this way and the Notary must be physically present when the document is signed.
A document can also be validly witnessed through a window, or in person provided the social distancing guidelines are adhered to and the appropriate sanitisation measures are taken.
Electronic Documents and Electronic Signatures
An electronic document is one which is simply created in electronic form only. Scots Law allows for any document to be constituted as an electronic document, with the exception of wills and other testamentary writings. In practice, however, documents (such as property transfers) which have to be registered in the Land Register of Scotland, for example, require to be in the traditional paper format. A traditional paper document that has been executed and scanned for transmission by email does not then become an electronic document in terms of the legislation.
Electronic signatures can take many forms. The 3 main types of electronic signature are:
Simple Electronic Signatures
This is the most basic form of electronic signature and is commonly used in various forms. This can include using your finger on a pad when a parcel is delivered; clicking an ‘I agree’ button on a computer; pasting your handwritten signature (in the form of an image) on to a document; or using an electronic signature platform.
Advanced Electronic Signatures
These are more secure than simple electronic signatures as the person signing the document has more control over their use and any changes to the signature will be detectable.
Qualified Electronic Signatures
A qualified electronic signature (QES) provides the highest standard of electronic signature and under Scots Law a QES has self-proving status.
The type of document will dictate which of these types of electronic signature is required and you should seek legal advice in order to ensure that the document will be validly executed.
The current lockdown is not a barrier to having documents signed and/or witnessed, but some additional thought needs to go into the mechanics of this. If you require assistance with any such matters then please feel free to get in touch with us.
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