Did You Know An Electronical Signature Is Not Valid For The Sale Of A Property
With technology evolving on a constant basis, more and more people are moving to online browsing and purchases.
In South Africa, electronic transactions are regulated by the Electronic Communications and Transactions Act of 2002 (ECT).
As the ECT Act allows for the use of electronic signatures, it is important to understand exactly what an electronic signature is, as well as when is an electronic signature is valid and legally binding.
What is an Electronic Signature?
The ECT Act defines an electronic signature as:
“Data (information presented electronically) which is attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as an electronic signature where a physical signature is not possible.”
Electronic Signatures – Are they always valid?
Although South African law requires that contracts be in writing, the ECT Act recognises that an electronic message may meet the “in writing” requirements, whereby the signature of a person is required by law and the type of signature is not specified by such law.
In order for the requirement to be met, an advanced electronic signature must be used, after which the agreement will be valid and legally binding.
However, not all electronic transactions are legally binding. The following are not provided for in the ECT Act:
• An agreement for the alienation of immovable property in terms of the Alienation of Land Act of 1981.
• An agreement for the long-term lease of immovable property in excess of 20 years in terms of the Alienation of Land Act of 1981.
• The execution, retention and presentation of a will or codicil as defined in the Wills Act of 1953.The execution of a bill of exchange as defined in the Bills of Exchange Act of 1964.
In terms of the Alienation of Land Act of 1981, no sale of land is valid unless it is contained in a sales agreement and signed by all parties, or by their agents acting on written authority.