We have identified some key dangers arising in relation to the current use of DocuSign for buyers and sellers of commercial and residential property.

We offer our thoughts on how these issues can be overcome either now, or with some advances in technology going forward.

One of our DocuSign dangers is properly identifying the parties that have signed an agreement.

When using DocuSign each party is identified by one or more pieces of information such as an email address or mobile number or both etc.

This creates issues if two parties have the same email address (e.g. husband and wife), or when you try to verify that the email address or mobile number actually belongs to the party who is using it.

This is particularly relevant in sales of property after separation or divorce etc. or by a company with a central email address where parties may have access to the same email address and theoretically, through DocuSign, one person could sign for both or for the company without the other person’s or director’s knowledge (N.B. we will discuss issues with companies signing via DocuSign in a later article).

Each party signing in DocuSign should therefore have a unique email address and provide a separate identifier such as a unique mobile phone number as well.

In our view it is critical that each party signing in DocuSign is required to verify their identity prior to using DocuSign by providing a licence and passport, with their email address and mobile verified at the same time by sending a verification email and text during the VOI process.

This allows all parties involved in the transaction to be assured that the parties who are participating in a DocuSign process are who they are meant to be and are the persons who will actually have access to the email and mobile listed.

Further, to confirm these details once a contract is signed, a DocuSign certificate of completion must accompany the contract to verify the parties who signed the agreement and all details associated with signing (email, mobile, where, when, IP address etc.).

When adopting new technologies and embracing change, you can’t afford to neglect or trivialise the importance of the long-established pillars of contract (being offer & acceptance, consideration and intention to be bound). A contract is only a contract if it is a contract.

Important Disclaimer: The material contained in this publication is of a general nature only and is based on the law as at the date of publication. It is not, nor is it intended to be, legal advice. If you wish to take any action based on the content of this publication, we recommend that you seek professional advice.