An issue that has arisen in the face of the Covid-19 pandemic is the execution of documents in cases were the signatories are working remotely or are prohibited from doing so due to social distancing requirements. Below is a summary of the ways different documents may be executed, including the temporary measures that have been enacted to facilitate electronic signing during the pandemic

Contracts

Standard contract can generally be electronically executed, at any time and can bind parties. In cases where a contract is being executed by an individual in their personal capacity, personal electronic signatures suffice. For companies, the rules are less clear. At common law, standard contracts can be in electronic form and executed electronically, however the law under s127 of the Corporations Act remains unsettled. At the very least, parties must be able to demonstrate that there is a clear intention to be bound by the contract and that they had the requisite authority to do so.

Deeds

At common law a deed must be written on paper, parchment or vellum, signed, sealed and delivered. Recent legislative changes in NSW have allowed deeds to be made in electronic form with electronic signatures (s38A Conveyancing Act 1919). However, a witness must be physically present and must execute the same document at the same time as the signatory.

NSW Covid-19 Regulations

Under the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020, witnessing can occur remotely via audiovisual links like Zoom, Skype or Microsoft Teams, insofar as the witness sees the signatory sign the document in real time, attests the signature was witnessed by signing the document or a copy, is reasonably satisfied that the document the witness signs is the actual or copy of the document and endorses the document with a statement verifying the method used to witness the signature and that is was witnessed in accordance with the regulation.

 

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