Signature move: avoiding errors in electronic missives

Using the correct type of electronic signature is crucial to the validity of electronic missives. The Law Society of Scotland is on hand with expert guidance. 

Since the Requirements of Writing (Scotland) Act 1995 was brought into force, advances in technology have changed how solicitors undertake property transactions. While there is still a need for paper – a ‘wet ink’ signature is required on documents to be registered in the Land Register of Scotland or Register of Sasines – most aspects of conveyancing transactions can be conducted digitally. This extends to missives, which may be exchanged in electronic form following amendments made to the 1995 Act by the Land Registration etc (Scotland) Act 2012. 

The use of electronic missives – that is, those that exist solely in electronic form (Word documents or PDFs, for example) and are signed electronically – increased substantially during the Covid lockdowns, and has continued to increase ever since. Given this popularity, and the potential for electronic missives to be signed incorrectly, the Society’s Property Law Committee would like to remind solicitors of the signing requirements for valid and probative electronic missives.  

Crucial to those requirements is the fact that missives fall within Section 1(2)(a)(i) of the 1995 Act, which states that writing is required for “the constitution of a contract […] for the creation, transfer, variation or extinction of a real right in land”. So, what are the requirements? 

Validity requirements 

To be valid, any formal letter forming part of electronic missives must be ‘authenticated’ (ie electronically signed) by the granter in accordance with Section 9B of the 1995 Act. 

This means that the granter’s electronic signature must be (a) “incorporated into, or logically associated with, the electronic document”; (b) “created by the person by whom it purports to have been created”; and (c) “of such type, and satisfies such requirements (if any), as may be prescribed by the Scottish Ministers in regulations”. The applicable regulations are the Electronic Document (Scotland) Regulations 2014/83, in particular Regulation 2. 

Essentially what Section 9B and Regulation 2 require for validity is that the granter must use an advanced electronic signature to authenticate any formal letter forming part of electronic missives. In practice, advanced electronic signatures are rarely used; instead, qualified electronic signatures are used (qualified electronic signatures being advanced electronic signatures which meet additional signature creation and certification requirements). 

There are three different types of electronic signature: 

• Simple electronic signature: This is the most basic form of electronic signature and includes typing a name or copying and pasting a JPEG image of a signature into a document. This is not a valid form of electronic signature for missives. 

• Advanced electronic signature (AES): This is a more secure form of signature which, among other things, is uniquely linked to the signatory and capable of identifying them. Although this is a valid form of electronic signature for missives, it is rarely used in practice, so solicitors are unfamiliar with AES. For that reason, and for the additional reasons outlined below, electronic missives should be authenticated with a qualified electronic signature instead.  

• Qualified electronic signature (QES): A QES is the most secure form of electronic signature. It involves the signatory’s identity being verified by a ‘qualified trust service provider’ before the signatory is issued with a QES. A number of providers have been reviewed to ensure that they provide a suitable QES for the Society’s members, and details are available here. A QES is a valid form of electronic signature for missives.  

Unlike paper missives – that is, those that are printed out in hard copy format and signed in wet ink – electronic missives do not need to be subscribed and so, in theory, the granter’s QES or AES could appear anywhere in the formal letters constituting missives. However, in practice, the granter’s QES usually appears at the end of the last page of each formal letter (excluding any annexations), which is the same place as the granter would subscribe paper missives. 

Probativity requirements 

If missives are not probative, there is no presumption of validity and so, in the event of a dispute, anyone seeking to rely on them would have to prove that they were validly executed. It is therefore usual practice for missives to be probative and, as such, solicitors may find that this is insisted upon. 

To be probative under Section 9C of the 1995 Act (so, the equivalent of witnessing a wet ink signature in paper missives), the granter’s electronic signature on any formal letter forming part of electronic missives must be a QES. Neither a simple electronic signature nor an AES can be probative. 

The QES itself is self-proving and no witness is required. As explained in the Society’s Guide to Electronic Signatures, “Scots law does not recognise the concept of witnessing an electronic signature” and so the purported witnessing of an electronic signature does not create a probative signature. 

Annexations requirements 

Regulation 4(2) of the 2014 Regulations applies to electronic documents falling within Section 1(2) of the 1995 Act, which includes missives. By virtue of Regulation 4(2), an annexation to a formal letter forming part of electronic missives will be regarded as incorporated in that letter if, and only if, the annexation is: 

• referred to in the letter (eg “‘Schedule’ means the schedule annexed to this offer”);  

• identified on its face as being the annexation referred to (eg “This is the Schedule referred to in the foregoing offer by A (on behalf of B) to C (on behalf of D) in respect of E”); and  

• annexed to the letter before any QES or AES is “incorporated into or logically associated with the [letter] and the annexation” (ie before a QES or AES is applied). 

It is not entirely clear how to annex an annexation to a formal letter forming part of electronic missives before any QES or AES is applied. However, the Guide to Electronic Signatures mentioned above suggests that this can best be achieved by incorporating the annexation into the same Word document or PDF as the main body of the letter, before applying any QES or AES.  

It is worth noting that the signatory only requires to apply their QES/AES once to the main body of the letter, without the need to also apply their QES/AES to any annexations (provided that any annexations are annexed to the letter before the QES/AES is applied). If there are multiple annexations, not having to separately sign them can save significant time. 

Summary 

To summarise, electronic missives should be authenticated with a QES. Copying and pasting or typing a signature into electronic missives is not a valid form of authentication, neither is using the simple electronic signature usually provided via the standard functionality of e-signing platforms, such as Docusign. (Many e-signing platforms, including Docusign, do offer QES functionality, but this is usually by way of an enhanced package.) Before using any electronic signature to authenticate electronic missives, it is important to check that it is a QES. There are several QES providers, including those reviewed by the Law Society of Scotland, and further guidance about electronic signing is available from the Society via the links in this article.