This monograph provides an historical consideration of the case law from common law jurisdictions relating to manuscript signatures, telegrams, facsimile transmissions and telex up to 1990. Judges in common law systems expanded the meaning of a signature as technologies developed and people used these new technologies in ways that were not anticipated. By recognizing that clear legal principles are not difficult to apply to new technologies, it follows that understanding electronic signatures and the various forms an electronic signature takes is also straightforward. The intention is to put the concept of the signature into a broad legal context, to set out the purposes that can be attributed to a signature and to explain the functions a signature is capable of performing. The function a signature performs remains as valid in the electronic age as when the use of an impression of a seal was considered to be the best means of authentication before the advent of widespread literacy, although seals, as with all other forms of evidence, could be forged.1
It is acknowledged that many of the cases referred to in this monograph refer to statutes that may well have been amended or appealed. However, this does not detract from the problems that lawyers and judges faced when applying legal principles to new forms of technology. As most of these cases illustrate, judges applied the underlying legal principles to the facts of the case, leaving the technology to one side, because the technology does not affect the legal principles. That judges and lawyers have had to deal with new technologies is hardly unique.
A signature can have a variety of purposes. For instance, painters in Renaissance Venice painted a signature on a painting in various ways and for a range of purposes – to provide for the authenticity of the painting or to assert that it was painted by a particular painter. It may also have been added by a leader of a workshop (who invariably was a famous painter) to indicate how they chose to represent themselves in relation to the conduct of their business, the determination of their reputation, and how they and their patrons perceived the value of their works2 – indeed the signature was also there to reflect the quality of the work and the skill of the master.3 For instance, the development of signatures on paintings in Venice during this period reflected developments in conceptions of the wider role of painters in the commercial and cultural world in Renaissance Venice. The painter would inscribe their signature on a painting, and might also include the date and other information, such as the name of a patron and the site in which the artwork was to hang.4 Signatures did not remain stable. From the 1440s, artists changed from using Gothic script to Roman script, and the style of the signature – in the way it was physically painted onto the painting – was intended to reveal the status of the artist.5
Another example is that of poets. While the print industry was in its infancy, and without the modern concept of intellectual property rights, poets took steps to assert authorship and to authenticate it at a time when printers had no qualms about printing the work of others without attribution.6
In Norman Sicily, signatures were intended to proclaim falsehoods and to conceal truths. For instance, the ‘alāma of King Roger was intended to give the impression that he was a Muslim ruler, and the ‘alāmāt of the eunuchs enabled them to conceal their faith from their Christian masters.7
Authentication can be the process by which a person or legal entity stresses the validity or genuineness of a particular piece of information. For instance, Professor Bedos-Rezak demonstrates that authenticity was, at one time, asserted by way of the style of writing:
Bernard of Clairvaux (d. 1153) sought to reassure his correspondents about the authenticity and representativeness of two letters to which he was unable to affix his seal. In one letter, he wrote: ‘I do not have my seal handy, but the reader will recognize the style because I myself have dictated the letter.’ The other letter states: ‘May the discursive structure stand for the seal, which I do not have handy.’ Bernard expects readers to notice his personal presence, however immaterial, within the fabric of the text, through its style and diction.8
Alternatively, it can mean the formal assertion of validity, such as the signing of a certificate: we authenticate what it certifies. In certain circumstances, there may also be a need to verify the identity of an individual or legal entity, although what is meant by ‘identity’ will also depend on the reason for ascertaining the identity.9 With a cheque, the signature serves to link the name of the person printed on the cheque with the person who claims to have the authority to draw money from the account indicated on the cheque.10 In the past, the existence of the cheque guarantee card with a manuscript signature on the reverse served to reinforce the link between the card and the cheque, although the signature did not necessarily identify the person signing the cheque, even if the signature on the reverse of the cheque guarantee card matched the signature on the cheque.11 In cheque cases, the printed name on a cheque is not necessarily accepted as a form of signature, although it can contribute to authenticity. For instance, Lawton LJ considered the issue of authenticity in relation to a cheque with a name printed on it, and suggested that ‘A printed name accompanied by a written signature was prima facie evidence that the cheque was being drawn on the account it purported to be drawn on’,12 although in the South African case of Akasia Finance v Da Souza13 Leveson J indicated why, at 338 G–H, he did not consider the name printed on the cheque could be a signature:
At the foot of each cheque, where the signature of the drawer is normally to be found, appear the words, ‘Domestic Homes (Pty) Ltd, Registration No 73/0541’. The words are printed and are plainly printed by machine.
It is well known that for several years past banks have been issuing cheque books to their customers with the customer’s name machine-printed thereon in the same space as the cheques in the present case. The printing is usually computer-controlled. This is done as part of a design to facilitate the modern banking system. Of importance is the fact that the printing is not done by the customer. It is therefore not the company’s signature in the sense that, if put there by a person authorised by a corporate customer, it would constitute the company’s signature or seal under the provisions of the Companies Act 61 of 1973.
The function of a signature is generally determined by the nature and content of the document to which it is affixed.
It is thought that the act of a person fixing their name to a document is well understood by lawyers and non-lawyers alike. However, a consideration of the case law demonstrates the range of issues that have arisen in relation to what seems, at first glance, a relatively simple concept. The means by which judges have tested the validity of a signature has altered over time. From concentrating on the form a signature takes, judges went on to question its validity by considering the function the signature performs.14 The analysis of the move from form to function applies equally to the analysis of electronic signatures. The perceptive comments from the sound dissenting judgment of Bell J in 1855 in the South African case of Van Vuuren v Van Vuuren,15 at 121, provide a useful summary with which to begin:
the expression ‘to sign’ a document has no strict legal or technical meaning different from the popular meaning, viz., to authenticate by that which stands for or is intended to represent the name of the person who is to authenticate. If you say to the most illiterate person ‘Sign this paper,’ if he cannot write, he will put a cross to it, and if he do not know how to do this the most experienced man of business cannot tell him to do more. If the party have learned a little writing, or if rheumatism of hard labour have cramped the nerves of his hand, and you ask him to sign a document, he will put the initial capital letters of his Christian and surname, while he will not venture upon writing the other more minute and therefore more difficult to be executed letters of these names, and he will feel satisfied that he has ‘signed’. If the man of business doubt this, and, seeing he can write so far as to be able to make the capital letters, think it will not be sufficient without the smaller letters, and insist upon his making them, should the party say he cannot, the lawyer will be content. On the other hand, should the party make the attempt and produce a scrawl more or less legible, so again the man of business will be content – whether the scrawl be legible or illegible, he will be satisfied that the man has ‘signed’. Such is the popular and professional practice, and the decision of the Courts had been conformably to it.
The Oxford English Dictionary offers a number of definitions of the word ‘signature’ as a noun and a verb.16 The earliest references relate to signatures of a public nature that were intended to have legal effect. The first definition of a signature as a noun is that of ‘A writing prepared and presented to the Baron of Exchequer by a writer to the signet, as the ground of a royal grant to the person in whose name it is presented’. An illustration for 1534 refers to ‘To pass with writings and signaturis to be subscrivit be the Kingis grace’. The remaining references for this entry also relate to royal signatures in the public domain. The second and third definitions continue with the same meaning. Item 2(a) is defined as ‘The name (or special mark) of a person written with his or her own hand as an authentication of some document or writing’, and is illustrated from Hollyband of 1580, referring to ‘the signature or marke of a Notaries’, with the next illustration from Coke dated 1633 referring to ‘A bill superscribed with the signature or signe manuall, or royall hand of the King’. The third reference, item 2(b), ‘The action of signing one’s name, or of authenticating a document by doing so’, is also illustrated by an early reference to Lord Keeper Williams from 1621: ‘Some things wee must offer to the kings signature when the clarkes are not to bee found.’ The law dictionaries vary in their treatment of the definition of ‘signature’.17
The epitome of a signature is the act of an individual writing their name in their own hand on a document, usually in the form of a manuscript signature.18 More widely, it is the action of a person affixing a permanent imprint upon a document. In the world before the invention of electricity and computers, an imprint was required to have the characteristic of permanency because it was necessary to retain tangible evidence of intention.19 In addition, the parties to the document may consider it necessary to retain the evidence for a sufficient length of time in order to enforce any rights or obligations evidenced in the record.
Before the development of the telegraph, a document would normally be considered something written onto a material, mainly paper. Although a number of people may be involved with the framing of a document and its subsequent manifestation in its final physical form, the document will have been created physically. Thus if an instruction was passed from one party to another by means of the operators of a semaphore, the sending operator could give evidence of the instructions received from the instructing party and the signals they used to transmit the message, and the receiving operator could give evidence of the signals they observed and noted down on paper. With the development of communications over the electric telegraph, the same principles would apply as with the semaphore, but the electronic pulses would be interpreted in the light of the code used by the sending and receiving operators. The use of the telegraph meant that the message was encoded into electronic pulses, but these pulses were not stored. The receiving operator transferred the evidence of the message to a carrier (paper). In contrast, software code transmits and stores the data in digital form, but the data are not visible to the human eye. A combination of the interpretation and use of hardware and software are required to make the data visible to the human.
In a world that relied on physical and permanent evidence of proof of intent, the requirement for an enduring record is understandable. While the legal consequences of a signature will differ when fixed to artefacts, such as items of pottery, paintings, sculpture and carvings on surfaces such as stone,20 marble, glass and wooden furniture, nevertheless a signature is capable of establishing the identity of the creator of the article and is also capable of authenticating the provenance of the object.21
A document usually exists on a carrier, typically paper. The carrier is marked permanently with content, usually with ink, either in the form of handwriting or by mechanical means, such as a printing press, typewriter or printer. This process alters the carrier physically. The content imprinted on the carrier may include a range of information, depending on the nature of the document, including information about the person that created, issued or initiated the content. Over time, as it is handled, the carrier will include additional information, including water, coffee or tea stains, scratches, additional content, fingerprints and DNA. Finally, a person or legal entity might sign the carrier with a signature. The reason for signing the document will depend on the nature of the document and the purpose for which the person is signing. When brought together, these components comprise the document in its entirety.22
Statutory definition of signature
There does not appear to be a statutory definition of the term ‘signature’, and Ashman J commented in 1892 in a case regarding probate that there was no judicial formula either:
Exactly what constitutes a signature has never been reduced to a judicial formula … The principle upon which these cases proceeded was that whatever the testator of grantor was shown to have intended as his signature was a valid signing, no matter how imperfect or unfinished or fantastical or illegible, or even false, the separate characters or symbols he used might be, when critically judged.23
The Interpretation Act 1978 does not provide a definition, although Professor Reed noted there were fifteen statutory definitions of ‘signature’ or ‘signing’ in force in 1996, eleven of which adopted an identical or similar variation to the following: ‘“signature” includes a facsimile of a signature by whatever process reproduced’.24 This particular definition is sufficiently general to include a representation of a signature in electronic form. The most obvious example is that of a manuscript signature that is scanned and converted into digital form. Such a representation can be attached to a document produced on a computer, or it could be the image of the signature as sent and received by a facsimile machine. It is estimated that there are in the region of 40,000 references to the requirement for a manuscript signature in English legislation.25 However, whether a personal signature is required depends upon the wording of the statute or the context of the requirement.26 With respect to legislation, Professor Reed notes that the statutory provisions relating to signatures fall into three broad categories:
Where documents that have been signed are admissible in evidence, or create evidential presumptions. The evidential presumptions are either that the document is conclusive proof of its contents, or it is clear evidence of the facts set out in the document.
Where documents have to be signed for the purpose of authentication, either expressly or from the context of the requirement.
Where a signature is required to exercise a statutory power.27
Humans have relied on the signature, or a form of signature, for thousands of years. This naturally leads into a discussion of the functions a signature is capable of performing, which are covered in the next chapter.
1 R. G. Johnston, D. D. Martinez and A. R. E. Garcia, ‘Were ancient seals secure?’ (2001) 75 Antiquity 299.
2 Louisa C. Matthew, ‘The painter’s presence: signatures in Venetian Renaissance pictures’ (1998) 80(4) The Art Bulletin 616, 620; see also Debra Pincus, ‘Signatures of the Lombardo Workshop’ (2013) 34(67) Artibus et Historiae 161; Lamia Balafrej, The Making of the Artist in Late Timurid Painting (Edinburgh University Press 2019), ch 5 ‘Wondrous Signature’.
3 Matthew, ‘The painter’s presence’, 627.
4 Matthew, ‘The painter’s presence’, 619.
5 Matthew, ‘The painter’s presence’, 621–622.
6 For consideration regarding the evolution of being accredited as the author of poetry in the late medieval period in France, for instance, see Cynthia J. Brown, Poets, Patrons, and Printers: Crisis of Authority in Late Medieval France (Cornell University Press 1995), ch 4 ‘Changing Authorial Signatures in Late Medieval Works’.
7 Jeremy Johns and Nadia Jamil, ‘Signs of the times: Arabic signatures as a measure of acculturation in Norman Sicily’ (2004) 21 Muqarnas 181, 190.
8 Brigitte Miriam Bedos-Rezak, ‘Medieval identity: a sign and a concept’ (2000) 105(5) The American Historical Review 1489.
9 Nicholas Bohm and Stephen Mason, ‘Identity and its verification’ (2001) 26 Computer Law and Security Review 43; for a technical response, see R. E. Smith, Authentication: from Password to Public Keys (Addison-Wesley 2002).
10 Where the signature on a cheque appeared to be unqualified, see F. R. Malan, ‘Composite signatures, personal liability and rectification’ (1985) 3 J S Afr L 347; F. H. I. Cassim, ‘The perplexing problem of company signatures on cheques – too little, too late’ (2000) 117(4) S African L J 676.
11 A website, sadly no longer available, (http://www.zug.com/pranks/credit_card/) illustrated how little people relied on a manuscript signature for the many millions of transactions conducted every day. The illustrations included the use of variations of their signature with a number of transactions, including evidence of the transaction slips.
12 Ringham v Hackett [1980] 1 WLUK 323, (1980) 124 SJ 201, Times, 9 February 1980, [1980] CLY 158, cited from (1980) 124 SJ 201 at 202(a). In Central Motors (Birmingham) v PA & SNP Wadsworth (trading as Pensagain) [1982] 5 WLUK 265, [1983] CLY 6u, [1982] CAT 231, 28 May 1982, (1983) 133 NLJ 555, a second account holder was held jointly liable for a cheque that he did not sign under the provisions of the Bills of Exchange Act 1882.
13 1993 (2) SA 337 (W).
14 Chris Reed, ‘What is a signature?’, (2000) 3 Journal of Information, Law and Technology (JILT), https://warwick.ac.uk/fac/soc/law/elj/jilt/2000_3/reed.
15 (1855) 2 Searle 116.
16 Oxford English Dictionary (2nd edn on CD-ROM, version 4.0, 2009).
17 Bryan A. Gardner (ed.), Black’s Law Dictionary (11th edn, West Group 2019); Daniel Greenberg (ed.), Stroud’s Judicial Dictionary of Words and Phrases (11th edn, Sweet & Maxwell 2019); David Hay, Words and Phrases Legally Defined (5th edn, LexisNexis Butterworths 2018).
18 Although the tuğra (a cipher or imperial monogram) of the Ottoman sultans that served as the signature of the sultan was drawn up by a court official and affixed to official documents, over time it was also carved on seals and stamped on coins, and artists illuminated later tuğra. For a discussion of a tuğra of Suleiman the Magnificent, see Neil MacGregor, A History of the World in 100 Objects (Allen Lane 2010), 71 ‘Tughra of Suleiman the Magnificent’, 458–463; for illustrations of tuğra, see M. Uğur Derman, Masterpieces of Ottoman Calligraphy from the Sakip Sabanci Museum (Sabanci University, Sakip Sabanci Museum, 2004).
19 Note the research presently being conducted by the School of History and Heritage at the University of Lincoln entitled: ‘Imprint. A Forensic and Historical Investigation of Fingerprints on Medieval Seals’. This research is a collaboration between history and forensic science, using a range of methods for hand mark identification, including digital imaging and the analysis of marks using both manual and Automated Fingerprint Identification System techniques of between 1,200 and 1,500 medieval seals which are still associated with their parent documents. Already, fingerprints and palm prints have been identified as a result of the process of affixing the seal: https://gtr.ukri.org/projects?ref=AH%2FM010813%2F1.
20 For a discussion relating to the most beautiful mausoleum that exists on earth, see Ebba Koch, The Complete Taj Mahal and the Riverfront Gardens of Agra (Thames & Hudson 2006), 90–91; Syed Ali Nadeem Rezavi, ‘Builders of the Taj: Evidence of the Stone-Cutter’s Marks’ (2012) 73 Proceedings of the Indian History Congress 408.
21 The copy of a painting with a false signature painted on it with the intention of passing off the painting as having been created by the named painter was determined to be a cheat at common law by the Cockburn LCJ and his fellow judges in Regina v Thomas Closs (1858) Crown Cases Reserved 460, Dears & Bell 460.
22 For the meaning of a ‘document’, see Stephen Mason, ‘Documents signed or executed with electronic signatures in English law’ (2018) 34(4) Computer Law and Security Report 933.
23 Mitchell J quoted these comments of Ashman J (whose decision was reversed) in In re Plate’s Estate, 148 Pa. 55, 23 A. 1038 (1892).
24 Water Resources Act 1991 (c 57) Schedule 4, Part II, Proceedings of Flood Defence Committees, quoted in Chris Reed, Digital Information Law: Electronic Documents and Requirements of Form (Centre for Commercial Studies, 1996), 225; Table 5.1, 262–263 for the full list.
25 HC Official Report (6th series) col 41, 29 November 1999; note also Reed, Digital Information Law, 239 and n. 41; Reed, ‘What is a signature?’, 3.1.2 and n. 68.
26 Reed, Digital Information Law, 233–244 and nn. 23 and 24.
27 Reed, Digital Information Law, 240–241. Professor Reed provides examples at 42–52.