Machines for writing multiple copies of a signature have a long history. John Isaac Hawkins (1772–1855) is credited with inventing what is generally referred to as an autopen, known at the time as a pentagraph.1 An ‘autopen’ featured in a case begun by the chef Gordon Ramsay, who took legal action against his father-in-law, Christopher Hutcheson, over a lease for a pub called the York & Albany in London. The lease was signed in 2007 for an annual rent of £640,000. Mr Ramsay’s signature was affixed to the lease using a Ghostwriter Manual Feed Signature Machine. Mr Ramsay claimed that the signature was a forgery. Morgan J described how the machine worked at [75]:
To use the machine, an operator needed a number code, to be tapped into the machine by use of a key pad, and a signature card. The signature card identified the signature which the machine would produce. It was also necessary to fit a pen to the machine. In this case, the pens which were used included a pen which produced the result of using a felt tip pen and another pen which gave the appearance of a pen with a fine knib being used. The felt tip signature was suitable for signing books or photographs and the fine knib pen was suitable for signing legal documents and cheques.
Mr Justice Morgan decided that because Mr Hutcheson was acting as an agent for Mr Ramsay at the time, he had acted within the authority conferred on him by Mr Ramsay, and he had not exceeded his authority. Mr Ramsay was bound by the guarantee in the lease of the premises.2
Mechanical marks by human action
The application of legal principles applies to new technology in the same way as it relates to more established ways of conducting business.
Once the typewriter had developed sufficiently to enable a typist to type faster than a human could write, the machine began to be widely used. An early example of litigation respecting the value of a typed signature was a case involving a remonstrance in 1905 in Indiana, that of Ardery v Smith.3 In this case, an attorney had the authority to sign a remonstrance against the issue of a liquor licence for and on behalf of voters, and being afflicted with erysipelas in his right hand, he caused the names to be typed in his presence and under his supervision. It was held to be immaterial that the names were added by means of a typewriter. Roby J summed up the position at 841:
In an opinion given in 1842 by William Wirt, then Attorney General, the question submitted being whether the Secretary of the Treasury was authorized by a statute requiring warrants to be drawn and signed by him to have his name impressed thereon by means of copper plate, the following language was used: ‘There would be great difficulty in maintaining the proposition, as a legal one, that, when the law required signing, it means that it must be done with pen and ink. No book has laid down the proposition, or even given color to it. I believe that a signature made with straw dipped in blood would be equally valid and obligatory, and, if so, where is the legal restriction on the implement which the signer may use? If he may use one pen, why may he not use several – a polygraph, for example, or types, or a stamp? The law requires signing merely as an indication and proof of the parties’ assent.’ 1 Opinions of Attorneys General, 670. The quotation is an apt one, as applied to the facts now under consideration. The typewriter is a modern convenience. The signature made by it was in this case the signature of the attorney; the operator being in fact his agent, exactly as the keys and the types were his agents.
From an evidential point of view, the person whose name was typed on the document must adopt the typed version as their signature.4 Crane J illustrated the difficulty that arises in this regard in the 1911 New York case of Landeker v Co-operative Bldg. Bank,5 demonstrating that it is necessary to link the application of the typewritten name to proof that the name was typed with authority and intent.6 Interestingly, a number of cases dealing with typewritten signatures are of relatively recent origin, and it is to be wondered, when reading some of the reports, whether the points ought to have been taken at all, given the long and liberal history adopted by the common law in relation to the form a signature takes.7 Examples include arbitration,8 mechanics’ lien,9 Statute of Frauds,10 mortgages,11 modification of a loan,12 pleadings,13 secured transactions,14 bonds,15 taxation16 and wills.17
In New Zealand, this concept is called the ‘authenticated signature fiction’ and is illustrated by the case of Bilsland v Terry,18 where an agreement for the sale of land had the names of both parties set out in the document, but it was signed only with the manuscript signature of one party. It was held to be a sufficient signing to satisfy s2 of the Contracts Enforcement Act 1956. Quilliam J commented, at 50:
Upon the authority, therefore, of the cases I have cited I find that the agreement was a sufficient memorandum in writing to satisfy the Contracts Enforcement Act, and is binding on the parties. I should mention that it was contended by Mr Luck that the conclusion I was invited to draw upon the basis of the authorities I have cited was plainly wrong, and that if I were to adopt it I should be introducing into the realm of conveyancing a hazard which should not be there. I realize that the rule to which I have referred is probably unknown to many conveyancers, but this alone is hardly a reason for not applying it where the facts render it applicable. The rule appears to be well established and I can see no reason why I should ignore it.
This decision was followed in Short v Graeme Marsh Ltd,19 but not in Carruthers v Whitaker20 (Bilsland v Terry was not referred to in this judgment). The Bilsland v Terry and Short v Graeme Marsh Ltd cases were later distinguished in Stuart v McInnes,21 where a contract for the sale of land was held not to be enforceable where neither party had signed the agreement. Wilson J discussed the ‘authenticated signature fiction’ at 733–734:
Although, over the years, the basis for the authenticated signature fiction seems to have changed somewhat, the line of cases in England which includes Tourret v Cripps, Evans v Hoare and Leeman v Stocks has now settled the law on this topic. From these cases it is clear that, in England, the principle applies if, and only if, these conditions obtain:
(1) the contract, or the memorandum containing the terms of contract, must have been prepared by the party sought to be charged, or by his agent duly authorised in that behalf, and must have that party’s name written or printed on it.
(2) It must be handed or sent by that party, or his authorised agent, to the other party for that party to sign.
(3) It must be shown, either from the form of the document or from the surrounding circumstances, that it is not intended to be signed by anyone other than the party to whom it is sent and that, when signed by him, it shall constitute a complete and binding contract between the parties.
I think the justification for the fiction is to be found in the last condition. Where the form of the memorandum or the surrounding circumstances show the intention that the contract shall be binding on both parties although not signed by the one who prepared it, the terms of the statute are not really applicable with reference to that one, so the fiction is introduced to meet the case. It is easy to see the justice of the result, but I confess to a regret that the solution found was to describe as a signature something that is not a signature and was never intended to be such. It might have been preferable to hold that such memoranda were outside the ambit of the statute in regard to the party whose signature was not contemplated as being necessary.
He went on to discuss the decisions in Bilsland v Terry and Short v Graeme Marsh Ltd at 734–735, which he declined to follow. The same decision was reached in Van der Veeken v Watsons Farm (Pukepoto) Ltd,22 where a contract for the sale of property called for the signature of both parties, and the authenticated signature fiction was considered not relevant to the fact of this case; the decision in Bilsland v Terry was also distinguished. It seems the current position in New Zealand is governed by TA Dellaca Ltd v PDL Industries Ltd,23 where the approaches taken in Bilsland v Terry and Short v Graeme Marsh Ltd were rejected. The members of the court favoured the approach taken by Wilson J in Stuart v McInnes and Beattie J in Van der Veeken v Watsons Farm (Pukepoto) Ltd. Tipping J commented, at 99: ‘I agree with their observations that to go further than the approach summarised by Wilson J really amounts to an unacceptable judicial repeal of the Contracts Enforcement Act 1956. The authenticated signature fiction is itself quite a significant departure from the literal terms of the Act.’
In Canada, the use of a typed signature in combination with an authorized manuscript signature of a departmental lawyer was the issue in the case of R v Fredericton Housing Limited.24 The question was whether the typewritten signature of the Deputy Attorney General of Canada was acceptable on a statement of claim, together with the manuscript signature of a lawyer in the department. The manuscript signature ‘F. J Dubrule’ was affixed to the statement of claim by a solicitor in the Tax Litigation Section of the Department of Justice, of which section Mr Dubrule was the director. It was held that the signature was the signature of Mr Dubrule. It was duly authorized by him, and the typed name ‘D. S. Maxwell’, when it was authenticated by the subscription of the signature of Mr Dubrule, became the signature of the Deputy Attorney General of Canada. Cattanach J made a useful observation, at 223, in discussing the difference between using a rubber stamp to affix a signature and a typewriter: ‘If the typewritten name “D. S. Maxwell” is not “writing” (as I think it is) it is most certainly a mechanical method of affixing and I cannot distinguish in principle an affixing by keys striking a ribbon from a rubber stamp with ink on it.’
The members of the Court of Appeal in England and Wales had occasion to consider the requirement of a signature on a document for the sale of land in the case of Firstpost Homes Ltd v Johnson.25 In this case a director of the company reached an oral agreement with Miriam Fletcher, the owner of land in Staffordshire, whereby she agreed to sell the land. A secretary typed a letter on 9 April 1993 for Mrs Fletcher to sign. Mrs Fletcher’s address was typed on the top right-hand side of the letter and it was addressed to Mr Hale of Firstpost Homes Ltd, followed by the address of the company. The letter continued:
Dear Geoff, re: Land and rear of Fulfen Farm, Burntwood Further to our recent discussions I now agree to sell you the above land shown on the enclosed plan which extends to 1564 acres in consideration of the sum of £1,000 (One thousand pounds) per acre. Yours sincerely.
Then there was a gap, and typed underneath this were the words ‘M. Fletcher (Mrs)’. A plan, a copy of an Ordnance Survey plan showing the land in question, was attached to the letter by a paper clip. Mr Hale signed the plan at the foot. He delivered the letter to Mrs Fletcher on Friday 1 April 1993 and returned on Sunday 11 April. Mrs Fletcher signed the letter and the plan. She died on 12 May 1993. The personal representatives refused to conclude the contract for the sale of the land and the company sought specific performance.
His Honour Judge Farrer QC refused the application. The appeal was dismissed. In giving a substantial judgment, Peter Gibson LJ pointed out the legislature had intended to make radical changes, and the changes were intended to simplify the law and avoid disputes when enacting the Law of Property (Miscellaneous Provisions) Act 1989. While the letter indicated Mrs Fletcher intended to sell the land, it was not clear that she intended to sell the land to the company. As a result, it was the letter, and not the plan, that formed the document of sale, and only Mrs Fletcher had signed this document. It was argued by the company that the typed name and address of the company were sufficient to show it was signed by the company. However, Peter Gibson LJ rejected this submission because it was based on previous authorities that in turn were based on earlier legislation, and not on the Law of Property (Miscellaneous Provisions) Act 1989. He considered it ‘is an artificial use of language to describe the printing or the typing of the name of an addressee in the letter as the signature by the addressee when he has printed or typed the document’26 and mentioned approvingly the comments made by Evershed MR and Denning LJ in Goodman v J Eban Limited.27 Peter Gibson LJ no longer considered that the interpretation of the modern Act should be governed by the authorities in relation to the Statute of Frauds 1677 or s40 of the Law of Property Act 1925. It was decided that the company had not signed the letter, and there was, therefore, no contract in place, although this decision was ‘limited to a case where the party whose signature is said to appear on a contract is only named as the address of a letter prepared by him’.28 Hutchinson and Balcombe LJJ agreed with this analysis, and Balcombe LJ reiterated the point, at 1577 E, that the ‘policy of the section is to avoid the possibility that one or other party may be able to go behind the document and introduce extrinsic evidence to establish a contract, which was undoubtedly a problem under the old law’.
The move from form to function has certainly been halted in the case of the sale of property.29 It is the view of Julian Farrand and Alison Clarke that the decision in Goodman does not provide the support that Peter Gibson LJ claimed, and the decision in Firstpost ‘not only involved flaws in law but also enabled an unmeritorious escape from contractual obligations’.30
The development of telegraphy in the early nineteenth century brought about the same types of dispute that occur in the era of the Internet, and judges were required then, as now, to adapt old laws to new technologies. The telegram and its various technologies, including the telex, were widely used from the outset. The telegram is the first incarnation of the electronic signature. In Godwin v Francis,31 an offer to buy a property was accepted by telegram. It was held that the telegram, together with other correspondence, was sufficient to satisfy the Statute of Frauds, and the signature of the telegraph clerk was considered a sufficient signature. In response to the argument that the instructions for the sending of the telegram could not be a signature of the contract because the paper was a mere instruction to the telegraph clerk, Bovill CJ responded, at 301–302:
Assuming that argument to be correct (though I am not prepared to adopt it), that would be instructions to the company to do that which in the ordinary course of their business is done. Now, the ordinary course of business is to transmit, to write out, an exact copy of that which is intended to be conveyed, and to forward it. The acceptance of the plaintiff’s offer is in the body of the document. The telegraph clerk copies it, signs it, and sends it to the plaintiff, the name of the seller appearing thereon. A correspondence ensues between the parties on the footing that there had been a binding contract for the sale of the estate; and, if the defendant had authority, it is clear that what was done did constitute a binding contract. But, independently of that, I am prepared to hold that the mere telegram written out and signed in the way indicated by the telegraph clerk, if done with the authority of the vendors, would have been a sufficient signature within the Statute of Frauds.
It was necessary to resolve the distinction between the contents of the document containing the message to be sent and subsequently presented to the telegraph office, and the document received by the recipient. In this respect, Willes J observed, at 302–303 that:
The message was left, signed by the defendant, at the office of the Telegraph Company. A copy was sent by the company to the plaintiff, and authenticated by them in the usual way. If the message so sent had been contained in a letter sent by post, there can be no doubt that would have been a sufficient contract to satisfy the statute. That is because the General Post Office has been held to be the common agent of the parties employing it.
Brett J also noted, at 303:
I think there is evidence that the defendant, when he signed the instructions, intended that to operate as his signature to the contract, and that it constituted a binding contract signed by him, if he had authority to enter into it. Then, it was objected that the defendant’s name appearing on the paper received by the plaintiff was insufficient, because the defendant had no power to delegate to the telegraph clerk an authority to sign his name. I think, however, it must be assumed as against him that he had authority to delegate to the clerk the power to sign for him, and that the signature so placed was binding upon him.
A number of cases concerning the exchange of telegrams were dealt with in a similar way as some forms of electronic signature are dealt with today: the point was not raised in argument, and therefore the issue of the efficacy of the signature was not challenged, inferring an acceptance of the proof of intent of the parties in the case.32 It is plain that the introduction of technology was not an excuse for preventing the application of legal principles to new technology. In McBlain v Cross,33 it was held that the signature in a telegram was sufficient to come within the Statute of Frauds. Willes J was not going to let technology impede the way in which the law was interpreted, commenting, at 806, that ‘If we did not hold such to be the law, the convenience which the modern invention of the electric telegraph has bestowed upon mankind would be in a great measure subverted’.
In 1886 it was determined that a person may provide authority to sign a name to a memorandum of association under the Companies Act 1862,34 and Vaughan Williams J had the foresight to issue a novel form of order in the case of In re English, Scottish, and Australian Chartered Bank.35 In this case, the principal business of the bank was in Australia, but it was ordered that the bank had to be wound up in England. A scheme of reconstruction was proposed, and Vaughan Williams J directed that meetings of shareholders and creditors be held to ascertain their wishes. The majority of the creditors were in Australia, and because of the need for speed, Vaughan Williams J made an entirely new form of order directing a form of proxy to be sent by the Official Receiver by telegraph to Australia, appointing specified persons to vote for or against the scheme at the meeting to be held in London. A number of objections were taken on the result of the vote in the meeting. One of the objections was that the judge had no power to order the Australian proxies to be communicated by telegram to the meeting. The proxies ought to have been produced at the meeting. It was held that the judge had the power under s91 of the Companies Act 1862, in combination with s2 of the Joint Stock Companies Arrangement Act 1870, to direct the particulars of the Australian proxies to be communicated by telegraph, and there was no need for the proxies to be physically produced at the meeting. Lindley LJ commented, at 410: ‘Now, that is an entirely new form of order. I need hardly say that it is adapted to the necessities of the time – it is ingeniously using the improved methods of communication by telegraph, which it would be folly to shut out and not use if you can do it.’ Smith LJ said, at 417:
I wish to add a few remarks upon a point which for the first time arises in this case, that is as to whether or not the electric telegraph can be made use of to carry out what was eminently needed, and indeed was absolutely necessary to do justice in this case.
Telegrams were as widely used in South Africa36 and the United States of America as in any other jurisdiction. In 1869 the process involved in sending and receiving a telegram was outlined by Sargent J in the New Hampshire case of Howley v Whipple.37 In this instance, the decision centred on the requirements to provide for the proper evidential foundation necessary in adducing evidence of a telegram into proceedings. In addition, it also followed that telegrams may constitute an adequate memorandum of the contract, and a contract could be construed by reference to several letters and telegrams.38 The use of telegrams covered a range of situations, including bills,39 judicial use40 and the Statute of Frauds.41 Generally, members of the judiciary took a robust view of telegrams, as illustrated in the 1912 Missouri case of Leesley Bros. v A. Rebori Fruit Co.,42 where it was held that an exchange of two telegrams between the parties to buy and sell a carload of onion sets was held to be in substantial compliance with the Statute of Frauds. Nixon PJ remarked at 142: ‘to hold otherwise would certainly embarrass present business methods and increase the expense and impair the usefulness of the telegraph as a necessary instrumentality in modern commerce.’ This view was shared by Wolff, Referee in the 1961 New York case of La Mar Hosiery Mills, Inc. v Credit and Commodity Corporation,43 where he held that a name included in a telegram constituted a signature. He commented, at 190:
It does not matter whether the telegram as delivered was copied from one written by an officer or employee of the defendant or was telephoned to the telegraph company by someone in the defendant’s behalf. Precisely what happened here was not shown. The defendant could not well be heard to disclaim responsibility for the telegram and it is to the credit of the defendant that it has not attempted to do so. The telegram with the typed signature of defendant’s name emanated from the defendant which is responsible for it. The signature on the telegram in suit, although typed in the office of the telegraph company, is therefore defendant’s authorized signature within the requirements of the statute of frauds. In view of the way in which business is done nowadays, any other view would be unrealistic and would produce pernicious consequences, impeding the conduct of business transactions.
The 1970 case of Yaggy v The B.V.D. Company, Inc.44 from North Carolina reinforced this point, where a telegram sent to the plaintiff accepting the latter’s offer to purchase property was binding on the defendant. It was held that the defendant’s name in print and affixed to the telegram by the same mechanical process employed by the telegraph company in reproducing other portions of the message constituted a signing within the Statute of Frauds. In the Pennsylvania case of Hessenthaler v Farzin,45 it was held that a mailgram that the vendor sent to a prospective purchaser of real estate confirming acceptance of sale constituted a signed writing. After reviewing a number of cases, Hoffman J indicated, at 993, that ‘We agree with these authorities that the proper, realistic approach in these cases is to look to the reliability of the memorandum, rather than to insist on a formal signature’ (emphasis in original). He went on to say, at 994:
The detail contained in this mailgram is such that there can be little question of its reliability. Appellants were careful to begin the mailgram by identifying themselves. They then made certain that their intention would be properly understood by declaring their acceptance, and identifying both the property and the consideration involved. In light of the primary declaration of identity, combined with the inclusion of the precise terms of the agreement, we are satisfied that the mailgram sufficiently reveals appellants’ intention to adopt the writing as their own, and thus is sufficient to constitute a ‘signed’ writing for purposes of the Statute. Moreover, this result is consistent with the holdings of courts in other jurisdictions that have addressed the question of whether or not a telegram can be a signed writing for purposes of the Statute.
Where an agent purports to act for a principal, it was determined by the Supreme Court of California in the 1929 case of McNear v Petroleum Export Corporation46 that the inclusion of the words ‘Smith of Petroleum Export’ at the beginning of the telegram acted as a means of identification, not authentication, and was therefore not a signature.
When compared to the jurisprudence developed in Europe and the United States relating to the formation of contract, Japan is less concerned for contracts to be in writing and to conform to a Statute of Frauds, but defines a contract as a judicial act to join two opposing wills.47 As a result, the formation of a contract does not necessarily require either party to sign a contract. It is instructive to observe that the methods of communication do not appear to pose a problem in determining whether a contract has been formed in Japan. In the case of Fawlty & Co Ltd v Matsui Shoten K.K.,48 the plaintiff, a New Zealand company, agreed to ship meat to Kobe port. The defendant attempted to cancel the contract and refused to accept delivery, which meant the plaintiff had to sell the meat at a loss. The contract was negotiated by a mix of letters sent by airmail and exchanges by telex. The court held that there was a contract for the purchase and sale of the meat. Although the court did not have to determine whether the communications sent and received by telex were signed by the parties, nevertheless the court must have reached the conclusion that a contract had been formed in light of the totality of the evidence, including the content of the correspondence conducted by telex. The inference is that if signatures were necessary in Japan, it is probable that a signature sent by telex will have been acceptable.
In the English case of Clipper Maritime Ltd v Shirlstar Container Transport Ltd (The ‘Anemone’),49 Staughton J had to determine whether a valid contract existed to perform a guarantee under the Statute of Frauds 1677. Clipper Maritime leased their vessel Anemone on time charter to Afram Line Ltd. Shirlstar were in the business of leasing and operating containers. By May 1983 Shirlstar was owed US$275,000 by Transaltic, an associated company to Clipper Maritime. Owners of ships became reluctant to lease their ships to such a charterer without security. The owners’ brokers negotiated the charter in respect of the Anemone on behalf of the charterers. It was agreed at an early stage that there would be a guarantee, and the charter was eventually drawn up. The owners alleged that US$107,115.92 was due under the charter and claimed this amount from Shirlstar. Shirlstar denied they had entered into a contract of indemnity. Evidence relating to the contract between the parties was partly contained in three telexes. Staughton J determined that the context in which the telexes were exchanged demonstrated the existence of a contract, even if only implied from the circumstances by which the correspondence took place.50 Although the point did not arise, Staughton J offered extrajudicial comments in relation to the nature of the exchange of telexes in the context of s4 of the Statute of Frauds 1677: ‘I reached a provisional conclusion in the course of the argument that the answerback of the sender of a telex would constitute a signature, while that of the receiver would not since it only authenticates the document and does not convey approval of the contents’.51
This conclusion followed the analysis of older cases. When a person sends a telex, it can be assumed they did so either because they intended the contents to be acted upon, or had the authority so to do. Upon receipt of the answerback, the sender may wish to revoke the original document, although to retract the document effectively may be difficult. Whether a document can be effectively revoked in this way will depend upon the circumstances of the case. When the transmission of a telex is completed, the recipient will have received the document in much the same way as if the document had been sent through the post. The recipient cannot be said to approve the content until it takes such action that demonstrates its approval. A number of issues were not examined in the judgment. Although none of these issues were in dispute in this case, they could arise in the future, as pointed out by Professor Reed:
•It does not consider the effect of the cases which appear to require a mark to be made;
•The identification messages of telex machines (and fax machines and computers) only identify the sending machine, not the sender;
•It is quite possible to program a telex (or a fax machine or a computer’s modem) to send a false identification message; and
•If the message is stored on disk by the recipient, it is possible to edit the contents and amend the identification message to take account of the alteration.52
In 2003 a case relating to the Limitation Act 1980 was heard before the Court of Appeal (Civil Division), that of Good Challenger Navegante SA v Metalexportimport SA (The ‘Good Challenger’).53 Clarke LJ described this case as ‘remarkable’ because it involved an attempt by the respondent to enforce an award made by arbitrators in London against the appellant. The appellant appealed against a decision to enforce an order previously issued in 1993. In essence, there were three issues for the Court of Appeal to deal with: whether the proceedings to enforce the award were time-barred, whether there was an abuse of process and whether the award could be enforced. There were a number of matters for the court to deal with in respect of the claim that the award had become time-barred, the second of which was whether the claim was time-barred in England and Wales at the relevant time as a matter of English law under s7 of the Limitation Act 1980, which provides as follows:
An action to enforce an award, where the submission is not under seal, shall not be brought after the expiration of six years from the date on which the cause of action accrued.
The respondents relied upon what they claimed were part payments and acknowledgements, which they said meant that the claim was not time-barred under the provisions of ss29(5) and 30 of the Limitation Act 1980. The relevant document for the purposes of the appeal was whether a telex relied upon by the appellants could be considered as an acknowledgement in writing and signed by the person making it within the meaning of s30(1). The respondent relied upon two part payments by way of authorized agents, and four acknowledgements. The validity of the award was not challenged, but no payment was made immediately. Attempts were made to obtain payment during the following years, and the respondent relied upon two telexes, each between the respective agents of the parties, as acknowledgements of the obligation to pay the amount of the award.
At appeal, the appellant submitted that the ordinary meaning of the word ‘signed’ requires the maker of the document to inscribe their name or a characteristic mark on the document in their own hand, and that there is no reason to give it any other meaning in respect of s30(1) of the Limitation Act. It would follow that the section was not satisfied where a telex contained a typed signature. There was no authority on this question in the context of s30 of the Limitation Act. The content of one telex dated 17 February 1988 is set out in the judgment of Mr Michael Crane QC, sitting as a Deputy High Court Judge in the Commercial Court.54 The telex was signed with the typewritten name ‘NAVLOMAR’ as authorized agent for the appellant. The question was whether the word ‘NAVLOMAR’ acted as a signature. The judge commented, at 61, that:
As a matter of general principle, in my view a document is signed by the maker of it when his name or mark is attached to it in a manner which indicates, objectively, his approval of its contents. How this is done will depend upon the nature and format of the document. Thus in the case of a formal contract which prints the names of the parties and leaves a space under each name for the parties to write their names, the document will not have been signed by a party until he writes in his name in the space provided. Conversely, with a telex, where there is no such facility, the typed name of the sender at the end of the telex not only identifies the maker but leads to the inference that he has approved its contents: the typed name, therefore, constitutes his signature. Thus in my judgment each of the telexes relied on by the Claimant was signed by the sender typing in its name, or his name, at the foot of the document.
The comments by the judge reflected the previous decisions held by numerous judges over the previous three hundred years, and were approved by Clarke LJ at 22, before discussing the language used in s30 of the Limitation Act and pointing out that the language was similar to that in s4 of the Statute of Frauds 1677.55 There was no suggestion that the name typed onto the telex was a forgery or added without authority, and Clarke LJ articulated the reasoning of the court for accepting that the signature typed onto the telex was considered a signature under s30, at 27:
The crucial point here is that Navlomar’s typed signature appeared on the telex in circumstances in which it is evident that it was put on with Navlomar’s authority so that it can be seen that Navlomar (and thus the charterers) were acknowledging the debt. The purpose of the statute is to be sure that the person said to be acknowledging the debt has in truth done so. That purpose is to my mind achieved by the conclusion reached by the judge and would be thwarted were we to accede to the charterers’ submissions. We were referred to a number of other authorities but, in my judgment, none of them is directly in point or affects the conclusion of the judge. I would only add that I am pleased to be able to reach this conclusion because, although telexes are not so common now, there was a time when they were the usual form of communication between chartering brokers and their principals and any other conclusion would not be commercially sensible.
It followed that the claim was not time-barred under English law.
The acceptance of communications by telex in Australia occurred in 1985,56 and there is a long history of recognition in the United States at the federal level.57 Newman CJ indicated in the federal second circuit case of Apex Oil Company v Vanguard Oil & Services Co.58 that the hasty formation of contracts did not pose a problem for the courts. It was held that an exchange of communications by telex satisfied the merchant’s exception to the Statute of Frauds, and he indicated, at 423, that:
Parties seeking the opportunity to make money with hurriedly arranged and briefly documented transactions ought not to expect appellate courts to provide them with extra protection against the risk that on occasion they will be held to the terms of an agreement that not every fact-finder would have found had been made.
Decisions at state level in relation to the Statue of Frauds follow this trend,59 as exemplified in the early 1948 Californian case of Joseph Denunzio Fruit Co. v Crane,60 where signatures included in messages exchanged by teletype constituted a signature. O’Connor DJ observed at 128:
As the court understands the modus operandi of the teletype machines in modern business practice, and particularly in connection with this lawsuit, Raymond R. Crane and A. B. Rains, Jr., each had a teletype machine in his office and as the machine was operated in one office, it would type the message or memorandum simultaneously in the other office; each party was readily identifiable and known to the other by the symbols or code letters used, and there is no contention that the messages did not originate in the office of one and terminate in the office of the other. The question is just what does constitute a ‘signature’ or ‘signing’ to satisfy the Statute of Frauds in California.
The court must take a realistic view of modern business practices, and can probably take judicial notice of the extensive use to which the teletype machine is being used today among business firms, particularly brokers, in the expeditious transmission of typewritten messages.
Documents sent by facsimile transmission have generally been accepted in common law jurisdictions.61 The use of a facsimile transmission to send a copy of a document to a recipient was considered in the Australian case of Molodysky v Vema Australia Pty Ltd,62 where the issue was whether a facsimile transmission was considered to be service of an agreement signed by the vendor. The judge followed the test formulated in Goodman v J Eban Limited63 and concluded that the vendor intended their signature on the facsimile transmission to be effective.
In the Singapore case of Chua Sock Chen v Lau Wai Ming64 in relation to the service of a notice to complete a transaction, Grimberg JC held that a notice to complete was properly served when sent by means of a facsimile transmission and where the original papers were subsequently sent by post to arrive the day after transmission. The judge responded to the argument that the notice sent by facsimile transmission was not a good service for the purposes of condition 29(2) and (3) of the Singapore Law Society’s Conditions of Sale 1981 at 112 B–C:
I am unable to accept that contention. Neither of the two conditions I have quoted calls for the giving or servicing of notice to complete by a stipulated method. In these days of instantaneous communication it would be unrealistic and retrogressive, in the absence of clear words to the contrary in the conditions, to hold that the giving or service of a notice to complete under condition 29(2) and (3) by fax or telex is bad. I therefore find that the defendants’ notice to complete was validly served by fax on 14 December 1988; that the period of notice began to run from 15 December.
Although the decision on the substance of the case was reversed on appeal, the members of the Court of Appeal offered no comments in relation to this aspect of the decision by Grimberg JC, which leads to the inference that his comments were adopted.
A similar issue arose in England and Wales in the case of Re a Debtor (No 2021 of 1995), ex parte, Inland Revenue Commissioners v The Debtor; Re a Debtor (No 2022 of 1995), ex parte, Inland Revenue Commissioners v The debtor.65 On Friday 9 June 1995 the Commissioners of the Inland Revenue sent a completed form of proxy by first-class post with directions to the chairman of a meeting of creditors to vote against the debtors’ proposals for voluntary arrangements. On the morning of the meeting, the Commissioners sent a facsimile transmission of the completed form of proxy to the chairman’s office. Although not stated in the report of the case, it is probable that the form transmitted included the manuscript signature of the relevant official. When it was received, the chairman sought to verify the contents of the transmission by telephoning the Commissioners’ office, but he was not able to speak to the officer handling the case. He refused to act upon the instructions sent by facsimile transmission. The original form of proxy arrived the following day. The Commissioners appealed the decision at first instance, where the district judge decided that the proxy sent by facsimile transmission was not signed as required by r8.2(3) of the Insolvency Rules 1986 SI 1986/1925. The question was whether the facsimile transmission of the form of proxy should have been accepted and acted upon by the chairman. In reaching his decision, Laddie J noted that given there was no direct authority on this point, he had to approach the issue from first principles. Having reviewed Jenkins v Gainsford and Thring66 and Goodman v J Eban Limited,67 he observed that:
in the overwhelming majority of cases in which the chairman of a creditors’ meeting received a proxy form, the form will bear a signature which he does not recognise and may well be illegible. Authenticity could only be enhanced if the creditor carrying suitable identification signed the form in person in the presence of the chairman. Even there the possibility of deception exists.68
Interestingly, he went on to suggest ‘that the function of a signature is to indicate, but not necessarily prove, that the document has been considered personally by the creditor and is approved of by him’.69 Laddie J then took the matter one stage further, and made the following observation, which is directly related to the concept of an electronic signature:
It may be said that a qualifying proxy form consists of two ingredients. First, it contains the information required to identify the creditor and his voting instructions and, secondly, the signature performing the function set out above. When the chairman receives a proxy form bearing what purports to be a signature, he is entitled to treat it as authentic unless there are surrounding circumstances which indicate otherwise.
In reaching the conclusion that a proxy form is acceptable when sent by facsimile transmission,70 Laddie J noted that two things happen at the same time. The contents of the form are sent, and so is the signature applied to the form, which process he described thus:
The receiving fax is in effect instructed by the transmitting creditor to reproduce his signature on the proxy form which is itself being created at the receiving station. It follows that, in my view, the received fax is a proxy form signed by the principal or by someone authorized by him.71
This decision was reached in November 1995 without, it seems, the benefit of knowledge of the decision by Waller J in Standard Bank London Ltd v Bank of Tokyo Ltd,72 which was delivered on 13 March 1995. The decision by Waller J is based on a tested telex between banks, which is a slightly different concept to a facsimile transmission, because a tested telex provides for a separate method of authenticating the content of the transmission. Nevertheless, in both cases emphasis was placed on the fact that a document sent by such means can be considered authentic and reliable, provided the recipient was not aware of any particulars that might indicate the document could not be trusted. A case similar to that determined by Waller J in Standard Bank London Ltd v Bank of Tokyo Ltd was Industrial & Commercial Bank Ltd v Banco Ambrosiano Veneto SpA,73 heard before Tay Yong Kwang JC in Singapore in 2003, in which he held that a message using an authentication code sent through the SWIFT (Society for Worldwide Interbank Financial Telecommunication) system has the legal effect of binding the sender bank according to its contents, and where a recipient bank undertakes further checks on credit standing or other aspects, it does not detract from this proposition. The effect of the comments made by Laddie J, taken together with the comments by Waller J, suggest a move towards a responsibility by a recipient to consider all the circumstances of the means of authentication before acting upon the authority – although it could be argued, in accordance with established practice between banks, that a receiving bank is entirely justified in wholly relying on an instruction based exclusively on confirmation of the test code. The practical conclusion to this question is highly significant. The Bangladesh Bank is fortunate that employees in the New York Federal Reserve and an employee in an intermediary bank questioned a series of transactions authorized via the SWIFT financial transaction system in February 2016. Thieves had placed malicious software into the computer system of the central bank. They then initiated thirty-five transfers to the value of US$951m via the SWIFT financial transaction system. Five orders were executed to a value of US$101m, although a spelling error sent to an account in Sri Lanka enabled the bank to recover US$20m, resulting in an actual loss of US$81m.74
The Vice-Chancellor, Sir Andrew Morritt, was required to reach a decision on the identical point in Industrial & Commercial Bank Ltd v Banco Ambrosiano Veneto SpA in the case of PNC Telecom plc v Thomas,75 as to whether the service of a notice sent by facsimile transmission for an extraordinary general meeting on a members’ requisition under s368 of the Companies Act 1985 was valid. By s368, notice to call a meeting is required to be deposited at the registered office of the company. The claimant argued that the notice was not valid on three counts: because it was sent by facsimile transmission, and the use of a facsimile transmission was not permitted within the meaning of ‘deposited’ in s368; that the Companies Act 1985 (Electronic Communication) Order 2000 (SI 2000/3373) had made service by electronic means valid in respect of some sections of the 1985 Act, but not for s368; and there was a requirement to know that the notice received at the registered office was genuine, which meant that it was not permissible to send a notice by facsimile transmission. Sir Andrew referred to a number of authorities in which a facsimile transmission had been accepted by the courts, and rejected all of the arguments put forward by the claimant. He considered that the deposit of the notice by facsimile transmission was valid, and robustly responded, at 94 a–b, to the illogical claim about the reliability of such a means of transmitting a document thus:
For the reasons given by Laddie J in the last citation, there is nothing inherent in a fax transmission to make it more or less reliable than the post. It is true that a fax may be falsified by a cut and paste operation but forgery and falsification is equally possible, usually by other means, in connection with postal and personal transmission too.
The same position with respect to facsimile transmissions holds in Canada, where, in the case of Re United Canso Oil & Gas Ltd,76 proxy forms submitted with a facsimile or mechanically rendered signature were held to be sufficient. Hallett J at 289 paragraph 17 made the following point:
Today’s business could not be conducted if stamped signatures were not recognized as legally binding. The affixing of a stamp conveys the intention to be bound by the document so executed just as effectively as the manual writing of a signature by hand. I would point out that no one questions the validity of millions of payroll cheques signed by facsimile signatures.
This view is echoed in the Singapore decision of Lim Teong Qwee JC in the case of Masa-Katsu Japanese Restaurant Pte Ltd v Amara Hotel Properties Pte Ltd,77 in which he held that a facsimile transmission of a request to extend the term of a lease was a valid form of communicating. He commented, at 18:
The written request dated 4 October 1997 was in fact received by the landlord. It was received by fax on 10 October 1997. It was not suggested that it was received other than at the landlord’s office where it could be attended to immediately. It was undoubtedly in writing when it was received. Communication by fax is not uncommon. It is fast. It is efficient. It accords with the practice of the business community. It seems to me that where as in this case a written request is to be made it is sufficiently made as much where the request is written on paper that is physically transported to the office of the person to whom the request is made as where it is transmitted by fax and received in written form at that person’s office.
Consideration was also given to a signature sent by way of facsimile transmission in the German case of GmSOGB 1/98 before the Gemeinsamer Senat der obersten Gerichtshöfe des Bundes (Joint Senate of the Federal High Courts) in 2000. In this instance, the court had to decide whether or not a facsimile transmission sent directly from a computer (Computerfax) with a scanned manuscript signature complied with the requirements of written form for formal court pleadings. In the normal course of events, various rules of German procedural law require formal court pleadings to be signed with a manuscript signature, and a number of Federal High Courts have reached decisions on this point.78 The court held that it was sufficient to transfer pleadings electronically in this manner, providing the documents were signed with a scanned manuscript signature, or if the document transmitted indicated that the document could not be signed personally because of the method of transmission. The members of the court reached this conclusion on the basis that the formal requirements of procedural law do not serve as an end in themselves, and the purpose of requiring court proceedings to be in written form is to identify the sender and ensure the document was sent with the sender’s knowledge and intent. As a result, the intention of the sender was not seriously in doubt because of the method of transmission.79 Similar decisions were made in Hungary80 and Lithuania,81 in which the Supreme Administrative Court in its ruling of 13 April 2006 held that the copy of an administrative decision sent by facsimile transmission constituted a proper form of notification by the governmental institution of its decision.
In the United States, a federal court on the ninth circuit found itself severely constrained by a set of extremely strict rules laid down by the Bureau of Land Management in the case of Gilmore v Lujan82 respecting documents sent by facsimile transmission. In this instance, an application was sent by facsimile transmission because the original postal application had not arrived on time. The Bureau refused to accept the documents sent by facsimile transmission because the papers were not signed with a manuscript signature. Upon appeal, this decision was upheld because the signature was required to be a manuscript signature only, and no other form was permitted. The Bureau of Land Management required applications to be holographically signed in ink by each potential lessee, and machine or rubber-stamped signatures were not acceptable. The rule was altered after the case of W. H. Gilmore,83 where Gilmore protested the lease was awarded to an applicant that used a rubber stamp as a signature. The regulations were deliberately altered to permit only manuscript signatures thereafter. Although the regulations required the signature to be in ink, nevertheless the Board determined, in the later case of Jack Williams,84 that a signature signed with a lead pencil was adequate. Nelson CJ criticized the decision, indicating, at 142, that:
Justice Holmes observed that citizens dealing with their government must turn square corners … Gilmore turned all but the last millimetre, but that millimetre, whose traverse is jealously guarded by the BLM, was his undoing. Relief to Gilmore in this narrow case would expose BLM to no fraud or risk of fraud, as his bona fides are beyond question. If Gilmore and those other few luckless applicants whose documents are stored rather than delivered by the Postal Service are to get any relief, it must come at the hands of the BLM. As shown by this case, those hands are more iron than velvet. We can only suggest to BLM that the body politic would not be put at risk by the granting of relief in these narrow and rare situations.
The use of facsimile transmissions has been challenged in other situations, such as arbitration85 and elections,86 although in Bogue v Sizemore87 there was no dispute about a contract disseminated by facsimile. In addition, cases have occurred under the Statute of Frauds,88 although not always successfully.
In Canada, forms of proxy sent by facsimile transmission were the subject matter of the British Columbia case of Beatty v First Exploration Fund 1987 and Company, Limited Partnership.89 In this case, it was held that forms of proxy sent by facsimile transmission were sufficient to meet the signature requirements under a limited partnership agreement. Hinds J indicated, at 383, that ‘The faxed proxies were not themselves signed, but they bore the photographic reproduction of the original of the limited partner who executed the particular proxy’. He went on to say, at 383, that ‘The law has endeavoured to take cognizance of, and to be receptive to, technological advances in the means of communication. The development of that approach may be observed in a number of cases, including the following.’ At 385 he addressed the argument relating to the theoretical possibility that such transmissions might be the subject of fraud, which is hardly an argument to use when the authenticity of the document in question has not been challenged:
It was argued by counsel for the Fund that validating faxed proxies would increase the risk of fraud, create uncertainty, and give an unfair advantage to those limited partners who had access to a telecopier or fax machine. I reject that argument. Faxed proxies are, in effect, a photocopy of an original copy. They reveal what is depicted on an original copy, including an exact replica of the signature of the person who signed the original proxy. I observe no greater opportunity for the perpetration of a fraud by the use of faxed copies than by the use of original copies. The same observation applies to the matter of uncertainty.
1 Obituary of Mr John Isaac Hawkins, (1866) 25 Proceedings of the Institution of Civil Engineers, 512, http://www.icevirtuallibrary.com/doi/pdf/10.1680/imotp.1866.23204.
2 Ramsay v Love [2015] EWHC 65 (Ch), [2015] 1 WLUK 295.
3 35 Ind.App. 94, 73 N.E. 840.
4 For Australia see Neill v Hewens (1953) 89 CLR 1; for the United States of America, see Federal, 10th circuit: Roberts v Johnson, 212 F.2d 672 (it must be proven to be intended to be the signature of the witness where a form designating a beneficiary is signed with a typewritten name) (1954); California: Estate of Moore, 92 Cal.App.2d 120, 206 P.2d 413 (a will signed with a typewritten name could not be considered to be signed in the absence of evidence to show it was typed by the testator or that it was typed in his presence and at his direction by another) (1949); Maine: Maine League Federal Credit Union v Atlantic Motors, 250 A.2d 497, 6 UUC Rep.Serv. 198 (there was no intent to adopt a typewritten name on a financing statement; it was only through inadvertence that the document was not signed with a manuscript signature) (1969); Massachusetts: Andre v Ellison, 324 Mass. 665 (1949) 88 N.E.2d 340; Missouri: First Security Bank of Brookfield v Fastwich, 612 S.W.2d 799 (Mo.App. 1981) (the burden of establishing the typed signature of a corporation arose when it was put in issue by a specific denial. The burden was on the party claiming under the signature, but he was aided by the presumption that it was genuine or authorized); in the Court of First Instance of Hong Kong in the case of Shenzhen Tian He Jian Sang Electronic Holdings Company Limited v Hong Kong Jian Sang Electronics (Group) Limited [2008] HKCFI 387, HCA 1587/2007, 9 May 2008, Hon Fung J held that it could not be inferred that an unsigned copy of a letter with the typed name of the second defendant was intended to be a signed copy addressed to the plaintiff.
5 130 N.Y.Supp. 780.
6 See also the 1911 Californian case of Little v Union Oil Company of California, 73 Cal.App. 612, 238 P. 1066; the Maryland case of Cambridge, Inc. v The Goodyear Tire & Rubber Company, 471 F.Supp. 1309 (1979) where a typewritten name on a lease did not bind where it was not intended to bind as a legal signature; and the 1926 Pennsylvania case of Tabas v Emergency Fleet Corporation, 9 F.2d 648 affirmed United States Shipping Board Emergency Fleet Corporation v Tabas, 22 F.2d 398 where the government of the United States was not deemed to have executed a contract because its name was typed on paper in the absence of evidence to show it had authorized or adopted such signature.
7 Although see the Maine case of In re Carlstrom, 3 UCC Rep.Serv. 766, 1966 WL 8962 (Bankr.D.Me.), where a typewritten name on a financing statement was not accepted as a signature. Note the astounding views of Conrad, Referee in Bankruptcy, negating the concept that a symbol can be considered a signature, and his hostile comments on the decision in Benedict, Trustee in Bankruptcy of Lillian E. Hargrove d/b/a Hargrove Typesetting Services v Lebowitz, 346 F.2d 120 (1965). For the absence of a manuscript signature on a typed letter with the name of the person typed below the space for a signature, and subsequently scanned and attached to an email, and where the typed name was sufficient, see the Massachusetts case of Hamdi Halal Mkt. LLC v United States, 947 F. Supp. 2d 159 (D. Mass. 2013).
8 Illinois: Just Pants, an Illinois limited partnership v Wagner, 617 N.E.2d 246 (Ill.App. 1 Dist. 1993) (the typewritten name of an arbitrator at the end of a memorandum of decision could serve to execute and give legal effect to the contents).
9 New Jersey: J. D. Loizeaux Lumber Company v Davis, 124 A.2d 593, 41 N.J. Super. 231 (the name of the plaintiff typed on a materialman’s notice of intention was held to be intended to be a signing as well as to serve other functions disclosed by the printed material) (1956).
10 Federal, 9th circuit: In the Matter of Save-On-Carpets of Arizona, Inc., 545 F.2d 1239 (1976) (a typewritten signature on a UCC financing statement satisfied the signature requirement of the Statute of Frauds).
Alaska: A & G Construction Co., Inc. v Reid Brothers Logging Co., Inc., 547 P.2d 1207 (the name ‘Glenn W. Reid’ typed at the bottom of a letter was considered to be signed) (1976).
Florida: Ashland Oil, Inc. v Pickard, Fla., 269 So.2d 714 (the typed words on notepaper with the letterhead of the company and with the word ‘Harold L. Slam, President’ typed at the bottom was a signature) (1972).
Maryland (1967): Dubrowin v Schremp, 248 Md. 166, 235 A.2d 722.
Massachusetts: Irving v Goodimate, Co., 320 Mas. 454, 70 N.E.2d 414, 171 A.L.R. 326 (the name of the employer typed at the end of a letter to an employee was a sufficient signature) (1946).
Minnesota: Radke v Brendon, 271 Minn. 35, 134 N.W.2d 887 (a prospective vendor’s letter including the prospective purchaser’s name and typewritten name of the vendor was tantamount to a written signature, given the intent) (1965).
Mississippi: Dawkins and Company v L & L Planting Company, 602 So.2d 838 (Miss. 1992) (a letter written on a buyer’s letterhead including the typewritten name of the sender was a sufficient signing to meet the merchant’s exception to the Statute of Frauds).
New York (1919): Cohen v Wolgel, 107 Misc. Rep. 505, 176 N.Y.S. 764 affirmed 191 A.D. 883, 180 NY.S. 933.
New Mexico: Watson v Tom Growney Equipment, Inc., 721 P.2d 1302 (N.M. 1986) (a name typed on a purchase order was held to be a sufficient signature because the signatory had deliberately filled out other details on the order form).
Wisconsin (1912): Garton Toy Co. v Buswell Lumber & Mfg. Co., 150 Wis. 341, 136 N.W. 147.
11 Federal 2nd circuit: Benedict, Trustee in Bankruptcy of Lillian E. Hargrove d/b/a Hargrove Typesetting Services v Lebowitz, 346 F.2d 120 (1965) (the insertion of the name in the body of a financing statement was held to be a sufficient signing. The intent to authenticate was established by the act of a secretary in typing his name at his direction and subsequently filing the statement).
12 Michigan: Etts v Deutsche Bank National Trust Company, 126 F.Supp.3d 889 (E.D.Mich. 2015).
13 Indiana: City of Gary v Russell, 123 Ind.App. 609, 112 N.E.2d 872 (a notice of claim was sufficiently signed when the plaintiff’s name was typewritten at the end) (1953).
North Dakota: Hagen v Gresby, 159 N.W. 3, 34 N.D. 349, 5 L.R.A. 1917B, 281 (the typewritten name and address of an attorney on a summons was sufficient. The attorney, F. B. Lambert, had not written a summons with a manuscript signature since 1896) (1916).
14 Federal 4th circuit: Calaway v Admiral Credit Corporation, 407 F.2d 518 (a financing statement with a typed name was not invalid for lack of manuscript signature where a typewritten signature was provided) (1969).
Federal 5th circuit: In the Matter of Bufkin Brothers, Inc., 757 F.2d 1573 (1985) (a secured creditor’s typewritten corporate name on a continuation statement was sufficient to validate the statement).
Connecticut: In re Horvath, 1963 WL 8592 (Bankr.D.Conn.), 1UCC Rep.Serv. 624 (a typewritten name considered a signature) (1963).
Georgia: Peoples Bank of Bartow County v Northwest Georgia Bank, 139 Ga.App. 264, 228 S.E.2d 181 (the printed name of the bank on a financing statement served to reinforce a manuscript signature that was not easily identified) (1976).
15 Texas: B. F. Bridges & Son v First Nat. Bank of Center, 47 Tex.Civ.App. 454, 105 S.W. 1018 (a typed signature to a bond was sufficient if adopted) (1907).
16 Massachusetts: Assessors of Boston v Neal, 311 Mass. 192, 40 N.E.2d 893 (an application for abatement was inadvertently not signed with a manuscript signature, but it was accompanied by a letter signed by the Treasurer of the First People’s Trust; it was held that the application signed with a typewriter was sufficient) (1942).
17 In the 1944 Texas case of Zaruba v Schumaker, 178 S.W.2d 542, a will written by the deceased on a typewriter with her typewritten name was held to be signed; compare the 1949 case in California of Estate of Moore, 92 Cal.App.2d 120, 206 P.2d 413 where a will signed with a typewritten name could not be considered to be signed in the absence of evidence to show it was typed by the testator or that it was typed in his presence and at his direction by another.
18 [1972] NZLR 43.
19 [1974] 1 NZLR 722.
20 [1975] 2 NZLR 667.
21 [1974] 1 NZLR 729.
22 [1974] 2 NZLR 146.
23 [1992] 3 NZLR 88.
24 [1973] FC 196, [1973] CTC 160.
25 [1995] 1 WLR 1567, [1995] 4 All ER 355, [1995] 7 WLUK 274, [1996] 1 EGLR 175, [1996] 13 EG 125, (1995) 92(28) LSG 30, (1995) 139 SJLB 187, [1995] NPC 135, Times, 14 August 1995, [1996] CLY 5025.
26 [1995] 1 WLR 1567 at 1575 F–G.
27 [1954] 1 QB 550, [1954] 2 WLR 581, [1954] 1 All ER 763, [1954] 3 WLUK 22, (1954) 98 SJ 214, [1954] CLY 3173.
28 [1995] 1 WLR 1567 at 1576 E.
29 For signatures relating to the law of property, see Julian Farrand and Alison Clarke, Emmet on Title (Sweet & Maxwell, loose-leaf).
30 Farrand and Clarke, Emmet on Title, 2.041.
31 (1870) LR 5 CP 295, 22 LT Rep NS 338.
32 In Henkel v Pape (1870) 6 L.R.Exch. 7 and L. Roth and Co. (Limited) v Taysen, Townsend, and Co. (1896–97) 12 TLR 211 CA contracts were formed by exchange of telegrams; the signature point was not raised in either case, but it can be inferred that it was accepted; in Sadgrove v Bryden [1907] 1 Ch 318, the words ‘Consent, Shaw’ sent by cablegram, which was, in turn, stamped with a 10 shilling stamp as power of attorney, was held sufficient to validate a form of proxy signed in advance but not dated in accordance with the provisions of s80 of the Stamp Act 1891; in Behnke v Bed Shipping Co [1927] 1 KB 649 a contract for the sale and purchase of a ship was conducted by letter, telegram and telephone, and it was held that a name added to a telegram was a signature where it was adopted or recognized by the party to be charged.
33 (1872) LT 804.
34 In re Whitley Partners Callan’s Case (1886) 55 LJCh (NS) 540.
35 [1893] 3 Ch 385.
36 Hersch v Nel, 1948 (3) SA 686 (AD); in Luttig v Jacobs, 1951 (4) SA 563 (OPD) the legal effect of the signature was not discussed; Balzun v O’Hara [1964] 3 All SA 368 (T).
37 48 N.H. 487 (1869).
38 Florida (1920): Meek v Briggs, 80 Fla. 487, 86 So. 271.
39 Kentucky (1918): Selma Savings Bank v Webster County Bank, 206 S.W. 870, 182 Ky. 604, 2 A.L.R. 1136.
40 Kentucky: Blackburn v City of Paducah, Ky., 441 S.W.2d 395 (a telegram sent by Judge John B. Blackburn containing his resignation from his post constituted a writing and was signed. The Board of Commissioners accepted the resignation and subsequently another police judge was appointed to fill the vacancy. When the appellant later attempted to act in this capacity, he was arrested) (1969). Clay, Commissioner, remarked, at 398: ‘Perhaps we have belaboured the obvious too much. Here appellant selected the medium to the transmittal of his message, composed its content and authorized his signature thereto. It is difficult to understand how he can now question the legal efficacy of the written instrument he had drafted for the sole purpose of tendering his resignation.’
Oklahoma: State ex rel. West v Breckinridge, 34 Okla. 649, 126 P. 806, 1912 OK 283 (where the resignation of the county attorney by telegram was acceptable).
41 Alabama: McMillan, Ltd v Warrior Drilling and Engineering Company, Inc., 512 So.2d 14 (Ala. 1986) (the name in telegram was a signature).
California: Brewer v Horst and Lachmund Company, 127 Cal. 643, 60 P. 418, 50 L.R.A. 240 (telegrams buying and selling hops were held sufficient for purposes of the Statute of Frauds) (1900).
Florida: Heffernan v Keith, Fla., 127 So.2d 903 (a telegram was signed by the telegraph company with authority of the sender) (1961); Ashland Oil, Inc. v Pickard, Fla., 269 So.2d 714 (a telegram constituted a signed memorandum) (1972).
Massachusetts (1972): Providence Granite Co., Inc. v Joseph Rugo, Inc., Mass., 291 N.E.2d 159, 362 Mass. 888.
Michigan (1890): Ryan v United States, 136 U.S. 68, 10 S.Ct. 913, 34 L.Ed. 447.
Montana: Hillstrom v Gosnay, Mont., 614 P.2d 466 (provided the necessary intent to authenticate the signature on a telegram was shown, the typewritten signature was a proper subscription) (1980).
Nebraska: Hansen v Hill, 340 N.W.2d 8 (Neb. 1983), 215 Neb. 573 (a telegram accepting an offer to buy land to which the vendor’s name had been affixed was considered signed under the Statute of Frauds).
New York: Dunning & Smith v Roberts, 35 Barb. 463 (the manipulations of a telegraph operator, upon the oral instructions of a person to send a dispatch for him, were the equivalent to a signing by that person within the Statute of Frauds) (1862); Trevor v Wood, 9 Tiffany 307, 36 N.Y. 307, 1867 WL 6445 (N.Y.), 3 Abb.Pr.N.S. 355, 93 Am.Dec. 511, 1 Transc.App. 248 (where dealers bought and sold bullion by exchange of telegrams, the telegrams were sufficiently signed under the Statute of Frauds) (1867).
Texas: Adams v Abbot, 151 Tex. 601 (1952), 254 S.W.2d 78 (a valid memorandum of contract may consist of letters and telegrams signed by the party to be charged and addressed to his agent or the other party to the contract, or even to a third person not connected with transaction).
But see Vermont: Pike Industries, Inc. v Middlebury Associates, 398 A.2d 280 affirmed on other grounds 436 A.2d 725, cert denied, 455 U.S. 947 (the contents of a telegram were not signed because the name of the party was not included in the body of the text) (1992).
42 162 Mo.App. 195, 144 S.W. 138.
43 28 Misc.2d 764, 216 N.Y.S.2d 186.
44 70 N.C.App. 590, 173 S.E.2d 496, 72 Am.Jur.2d.
45 564 A.2d 990 (Pa.Super. 1989).
46 280 P.R.Cal. 684.
47 N. Kashiwagi and E. A. Zaloom, ‘Contract law and the Japanese negotiation process’, in G. P. McAlinn (ed.) The Business Guide to Japan (Butterworth-Heinemann Asia, 1996), 89–101, republished in K. L. Port and G. P. McAlinn, Comparative Law: Law and the Legal Process in Japan (2nd edn, Carolina Academic Press 2003), 459.
48 Showa 33 (Wa) No.681, 10 November 1962, translated by H. Kaneko, Digital Evidence and Electronic Signature Law Review (2012) 9, 109.
49 [1987] 1 Lloyd’s Rep 546, [1987] 2 WLUK 45, [1987] CLY 1846.
50 [1987] 1 Lloyd’s Rep 546 at 556(b).
51 [1987] 1 Lloyd’s Rep 546 at 554(b).
52 Reed, ‘What is a signature?’, 4.1 [emphasis in original].
53 [2003] EWHC 10 (Comm), [2003] 1 Lloyd’s Rep 471, [2003] 1 WLUK 69, [2003] CLY 195, appealed [2003] EWCA Civ 1668, [2004] 1 Lloyd’s Rep 67, [2003] 11 WLUK 617, (2004) 101(2) LSG 27, Times, 27 November 2003, [2004] CLY 373.
54 [2003] EWHC 10 (Comm) at [55]–[57].
55 [2003] EWCA Civ 1668 at [24].
56 Torrac Investments Pty Ltd v Australian National Airlines Commission [1985] ANZ Conv R 82.
57 Federal, 2nd circuit: Interocean Shipping Company v National Shipping and Training Corporation, 523 F.2d 527 (1975) (a signature typed into a telex under authority was sufficient to bind the principle).
58 760 F.2d 417 (1985).
59 New York: Miller v Wells Fargo Bank International Corp., 406 F.Supp. 452 (1975) fn. 36, at 483 discusses the validity of a signature by way of a telex message, and raised the issue as to whether a test key on a telex is capable of being a signature.
Pennsylvania: The Ore & Chemical Corporation v Howard Butcher Trading Corp., 455 F.Supp. 1150 (1978) (the exchange of telex messages between parties can constitute a written contract).
Texas: Hideca Petroleum Corporation v Tampimex Oil International, Ltd., 740 S.W.2d 838 (Tex.App. – Houston [1st Dist.] 1987) (the negotiation for sale of Dubai crude oil largely by means of exchange of telex messages).
60 79 F.Supp. 117 reversed on other grounds upon rehearing 89 F.Supp. 962.
61 For Poland, see Case note: Poland, I KZP 29/06, Resolution of the Polish Supreme Court, commentary by A. Lach, Digital Evidence and Electronic Signature Law Review (2008) 5, 147.
62 (1989) NSW ConvR 55446, [1989] AUConstrLawNlr 143; note by J. Tyrril, Australian Construction Law Newsletter, 9 (1989), 24.
63 [1954] 1 QB 550, [1954] 2 WLR 581, [1954] 1 All ER 763, [1954] 3 WLUK 22, (1954) 98 SJ 214, [1954] CLY 3173.
64 [1989] SLR 1119, the decision on the substance of the case was reversed on appeal [1992] 2 SLR 465.
65 [1996] 2 All ER 345, [1995] 11 WLUK 290, [1996] BCC 189, [1996] 1 BCLC 538, [1996] BPIR 398, [1996] CLY 3469.
66 (1863) 3 Sw & Tr 93, 164 ER 1208.
67 [1954] 1 QB 550, [1954] 2 WLR 581, [1954] 1 All ER 763, [1954] 3 WLUK 22, (1954) 98 SJ 214, [1954] CLY 3173.
68 [1996] 2 All ER 345, Ch D at 351 (b–c).
69 [1996] 2 All ER 345 at 351(d).
70 Laddie J indicated that the decision he made was only in relation to Part 8 of the Insolvency Rules 1986, and said: ‘Different considerations may apply to faxed documents in relation to other legislation’, at 352d–e.
71 [1996] 2 All ER 345, Ch D at 351(h).
72 [1995] 2 Lloyd’s Rep 169, [1995] 3 WLUK 182, [1995] CLC 496, [1998] Masons CLR Rep 126, Times, 15 April 1995, [1995] CLY 397.
73 [2003] 1 SLR 221.
74 https://en.wikipedia.org/wiki/Bangladesh_Bank_robbery.
75 [2002] EWHC 2848 (Ch), [2002] 12 WLUK 537, [2003] BCC 202, [2004] BCLC 88, [2003] CLY 532.
76 (1980) 12 BLR 130, 76 APR 282, 41 NSR (2d) 282 (TD).
77 [1999] 2 SLR 332.
78 Federal Social Court, Beschluß vom 15.10.1996 – 14 BEg 9/96; Federal Administrative Court, Beschluß vom 19.12.1994 – 5 B 79/94.
79 M. Knopp, case note, Digital Evidence and Electronic Signature Law Review (2005) 2, 103.
80 Case number BDT 2001/496.
81 UAB ‘Bite Lietuva’ v Communications Regulatory Authority AS14–77–06.
82 947 F.2d 1409 (9th Cir. 1991).
83 41 IBLA 25 (1979).
84 91 IBLA 355 (1986).
85 New York: In the Matter of American Multimedia, Inc. v Dalton Packaging, Inc., 143 Misc.2d 295, 540 N.Y.S.2d 410 (an order was transmitted by facsimile machine that only contained the first of two pages of an order form, stating that all orders were subject to the terms and conditions on the reverse of the form, which was not sent. It was held that the terms did apply, because the petitioner had filed over 100 such orders in the previous three years) (1989).
86 New Jersey: Madden v Hegadorn, 565 A.2d 725 (N.J.Super.L. 1989), 236 N.J.Super. 280, affirmed 571 A.2d 296 (N.J. 1989), 239 N.J.Super. 268 (a document sent by facsimile transmission containing a manuscript signature was deemed effective for filing a nomination petition, and any technical defects were cured when the candidate filed the original documents the day after the facsimile transmission was sent).
87 241 Ill.App.3d 250, 608 N.E.2d 1246 (Ill.App.4th Dist. 1993).
88 New York: WPP Group USA, Inc. v The Interpublic Group of Companies, Inc., 644 N.Y.S.2d 205, 228 A.D.2d 296 (it was premature to decide whether the Statute of Frauds was satisfied where an unsigned facsimile transmission on the letterhead of the sender was sent) (1996). For the merchant’s exception see the New York case of Bazak International Corp. v Mast Industries, Inc., 140 Ad.2d 211, 528 N.Y.S.2d 62, 6 UCC Rep.Serv.2d 375, appeal granted by 72 N.Y.2D 808, 529 N.E.2d 425, 533 N.E.2d 57 (N.Y. 1988), Order reversed by 73 N.Y.2D 113, 535 N.E.2d 633, 538 N.Y.2d 503, 57 USLW 2520, 82 A.L.R.4th 689, 7 UCC Rep.Serv.2d 1380 (N.Y. 1989) where annotated telecopies (‘telecopies’ is a trademark sometimes used for a facsimile machine) of headed purchase order forms signed by the alleged purchaser and sent to the alleged seller and retained without objection came within the merchant’s exception to the Statute of Frauds.
89 25 BCLR2d 377 (1988).