Authors should keep in mind that this clause tends to be a bit outdated. Many clauses, including our standard, do not contain any mention of copies signed by fax or email. This seems to be a common practice in contracting. However, authors should consider including a statement that signatures sent by fax or email/pdf are valid. See our alternatives below for sample language. The E-Sign Act 2000 authorizes the use of electronic registrations in consumer contracts as long as the consumer has „agreed yes“ to its use. It stipulates that any law subject to a signature obligation can be carried out by an electronic signature and that electronic agreements can be presented as evidence in court. If you sign a private contract between two parties, you can agree on the types of acceptable signatures. Make this contract in writing so that you can bring it to justice if necessary. If your contract or agreement is to be registered with a court, you will probably need to have original signed documents as consideration. Simple contracts and documents generally contain a clause expressly authorizing the execution of the document in return.
There are two forms of agreement written under English law: simple contracts (written „on hand“) and deeds. The counterparty clause states that the parties are not obliged to sign the same copy of an agreement and that all copies may be treated as original for evidence. Some clauses provide that the agreement is effective only when one of the parties complies with the agreement it has signed. It is interesting to note that historically counter-enforcement has not been universally recognised by Scottish legislation (although this was a lively point of debate). However, the Legal Writings (Counterparts and Delivery) Act 2015 has changed this situation. While you should always walk around with Scottish lawyers, the related article (from the Law Society of Scotland Journal) provides a useful overview of the counter-enforcement procedure in Scotland. The absence of a counter-clause does not in itself invalidate any agreement that the parties execute through separate counterparties. However, a counter-clause may help prevent a party from arguing that an agreement is not binding because there is not a copy signed by all parties or because they did not know that they are entering into a binding contract by signing an agreement that was not signed by the other parties.
In recent years, more and more people have used electronic signatures (e-signatures) to sign contractors. In short, the safest way for simple contracts and deeds is for parties to exchange by email pdf copies of signature pages executed with – in the same email – a word or pdf version of the entire agreement that was executed. A (relatively) new issue in contract law is when an electronic signature functions as an ordinary paper letter signature to attach it to an agreement. Examples of electronic signatures are the entry of your own name at the end of an email, the click of a „I agree“ button, or the entry of your name or code, password or PIN in a field in an electronic form. Electronic signatures must be taken into account with respect to a counterparty clause, since these signatures are generally used for agreements signed by parties who are not in the same place and who each sign electronic „copies“ of the same agreement.