The pandemic has led to alternative methods of signing being used and largely accepted, in addition to the traditional wet-ink method of signing. The most commonly encountered methods of signing are now:
- Traditional “Wet-ink” signatures;
- E-signatures, e.g. using platforms such as DocuSign; and
- “Mercury Signing”.
Wet-ink signatures
What is it and how does it work?
- The most common method of signing involves the signatory making a mark on the physical document, using a writing tool, usually a pen.
- Whilst commonly used, documents signed in wet ink are frequently incorrectly executed and the hard copy documents take time to be produced, executed and returned.
When?
All forms of documents including simple contracts, deeds and most other legal agreements, whether they require witnessing or not
E-signatures
What is it and how does it work?
- An electronic method of providing consent or approval, by electronically signing documents on a digital platform.
- Now regarded as a more efficient and secure method of signing, the following steps are involved:
- The documents are sent to the signatory via a signing platform such as DocuSign.
- The signatory can then electronically sign where indicated on the document, by completing the assigned parts of the documents on their device.
- Once completed, the signatory can submit and the document will be returned to the sender.
- If more than one person is required to sign the document, the sender can create a signing order and the document will then be circulated to each signatory in turn, as required.
- A certificate is then produced to the sender to verify the specific details of the signatories, including the time of signing and their IP address. This can be used to verify the signatures and may be used to assist with certifying the execution of documents to third parties, such as the Land Registry.
- Digital e-signature platforms can be accessed on any electronic device that can connect to the internet and use a web-browser (laptops, mobile phones, tablets etc.) and no specific software or apps need to be downloaded or installed.
- A link to initiate the signing process is emailed to the signatory’s designated email address, as input by the sender of the document
When?
- Contracts and other legal documents that do not need to be executed “as a deed” (e.g. most contracts for sale/purchase and agreements for lease, Stamp Duty Land Tax Returns etc.) can be signed using this method with limited additional formalities being required.
- Deeds can also be signed using this method; although where a signatory’s signature needs to be witnessed (e.g. where a sole director signs on behalf of a UK company or an individual is signing in their personal name) the witness must be physically present when the signatory electronically signs the document. The witness must also complete their signature (and additional details) through the electronic signing platform. The witnessing of signatures (whether electronic or otherwise) cannot be done via a video call.
- Given the potential difficulties with the witnessing of electronic signatures, it is often easier for companies to execute deeds acting by two directors or a director and the company secretary. The “wet-ink” equivalent to this signing arrangement would require both of those signatories to sign the same physical document. However, with e-signatures, the two signatories can access and sign the document independently, without needing a witness for their respective signatures.
- A number of institutions (such as the Land Registry) have specific requirements for e-signatures, which mean that they are not always an option (e.g. the Land Registry cannot – subject to limited exceptions – accept electronically signed deeds for registration, where any of the parties to the deed are not represented by a conveyancer).
Mercury signing
What is it and how does it work?
- An alternative form of electronic signing (named after the case in which it was established as a valid method of signing a document), which requires the signatory to: print the signature page of the document, execute it with a wet-ink signature and scan it back to the sender.
- This method involves the following steps:
- Once the relevant documents are in an agreed form, they are sent to the signatories by email.
- Each signatory that wishes to use the Mercury Signing method must print the signature page of the document and sign in wet ink. If a witness is required, they must be physically present and they must also complete their signature (and other details) in wet ink. Witnessing cannot be done via a video call.
- The executed page will then need to be scanned and sent to the sender, in a PDF or JPEG form, together with a complete copy of the final agreed form of document.
- Once the sender has received the executed page and the complete copy of the final agreed form of document, both documents can be printed and attached to one another, to form a single “original” signed document, in readiness for completion.
When?
All forms of documents including simple contracts, deeds and most other legal agreements, whether they require witnessing or not.
How we can help
Our real estate solicitors can advise across a range of real estate matters. If you would like to speak with a member of the team you can contact our real estate team (Holborn: 020 3826 7523, Putney: 020 3826 7518) or complete our online enquiry form.