[1] For example see Property Law Act 1974 (Qld), s 59 which provides: "No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised". Other Australian jurisdictions: Imperial Acts (Substituted Provisions) Act 1986 (ACT), Sch 2 Pt 1 cl 4; Conveyancing Act 1919 (NSW), s 54A; Law of Property Act 2000 (NT), s 62; Law of Property Act 1936 (SA), s 26(1); Conveyancing Law of Property Act 1884 (Tas), s 9; Instruments Act 1958 (Vic), s 136; Statute of Frauds 1677 (Imp) (WA), s 4. United Kingdom: Law of Property (Miscellaneous Provisions) Act 1989 (UK), s. 2(1) provides that "A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each" and s. 2(3) provides "The document incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract". United States: examples include: Code of Ala. § 8-9-2. (2002) Contracts; Statute of Frauds provides: "In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:..(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller..."; Missouri Revised Statutes (2002), Section 432.010 provides: "No action shall be brought to charge any executor or administrator, upon any special promise to answer for any debt or damages out of his own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of another person, or to charge any person upon any agreement made in consideration of marriage, or upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year, or upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract"; Indiana Title 32, Article21, Chapter 1, Section (b) provides: "A person may not bring any of the following actions unless the promise, contract, or agreement on which the action is based, or a memorandum or note describing the promise, contract, or agreement on which the action is based, is in writing and signed by the party against whom the action is brought or by the party's authorized agent: ..(4) An action involving any contract for the sale of land...".
[2] Williams J, The Statute of Frauds, Section 4 - In the Light of Its Judicial Interpretation, Cambridge, 1932, xxx-xxii.
[3] Farrand JT, Contract and Conveyance, 4th ed, Oyez Longman, 1983, 32.
[4] Simon v Metivier (1766) 1 Black W 599 at 601 per Wilmot J; 96 ER 347; Hanau v Ehrlich [1911] 2 KB 1056 at 1066 per Fletcher Moulton LJ; Wakeham v MacKenzie [1968] 1 WLR 1175.
[5] Kidd DL and Daughtrey WH, "Adapting Contract Law to Accommodate Electronic Contracts: Overview and Suggestions" (2000) 26 Rutgers Computer & Technology Law Journal 215, 248.
[6] United Kingdom: Interpretation Act 1978 (UK), Schedule 1: "Writing" includes typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form, and expressions referring to writing are construed accordingly. Australia: Acts Interpretation Act 1954 (Qld) s. 36: "writing includes any mode of representing or reproducing words in a visible form"; Interpretation Act 198
[7] (NSW) s. 21: "writing includes printing, photography, photocopying, lithography, typewriting and any other mode of representing or reproducing words in visible form"; Interpretation of Legislation Act 1984 (Vic) s. 38: "writing includes all modes of representing or reproducing words, figures or symbols in a visible form and expressions referring to writing shall be construed accordingly"; Interpretation Act 1984 (WA) s. 5: "writing and expressions referring to writing include printing, photography, photocopying, lithography, typewriting and any other modes of representing or reproducing words in visible form"; Interpretation Act 1978 (NT) s. 26: "In an Act, words, expressions and provisions referring to writing shall be construed as including references to any mode of representing or reproducing words, figures or symbols in a visible form whether or not an optical, electronic, mechanical or other means or process must be used before they can be perceived"; Acts Interpretation Act 1915 (SA) s. 4: "writing" includes any visible form in which words may be reproduced or represented; Acts Interpretation Act 1931 (Tas) s. 24(b): "expressions referring to writing shall be construed as including references to any mode of representing or reproducing words, figures, or symbols in a visible form". United States: The Uniform Commercial Code ("UCC") has been adopted as a matter of state law with slight variations in the various states. It contains a provision referred to as the "statute of frauds" which requires that contracts for the sale of goods over $500 be in writing. See U.C.C 2-201: "Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker". The U.C.C 1-201(46) defines writing or written as including "printing, typewriting or any other intentional reduction to tangible form". The proposed revisions to U.C.C Article 2 substitutes "writing" for record (See: National Conference of Commissioners on Uniform State Laws, Proposed Amendments to Uniform Commercial Code Article 2 - Sales, July 26-August 2, 2002, http://www.law.upenn.edu/bll/ulc/ulc_frame.htm). The revision of Article 1 defines "record" as meaning "information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form": Revised U.C.C 1-201 (33a). The definition of writing remains unchanged. See: National Conference of Commissioners on Uniform State Laws, Revision of Uniform Commercial Code Article 1 - General Provisions, August 10-17, 2001, http://www.law.upenn.edu/bll/ulc/ulc_frame.htm 7 Examples include: a receipt containing sufficient particulars (Hawkins v Price [1947] Ch 645; Beckett v Nurse [1948] 1 KB 535.), a series of letters signed either by the parties to the contract or a lawfully authorised person (Elias v George Sahely & Co (Barbados) Ltd [1983] 1 AC 646.), a cheque (Stokes v Whicher [1920] 1Ch 441; Grime v Bartholomew [1972] 2 NSW LR 827.), or a combination of such documents.
[8] Hawkins v Price [1947] Ch 645; Beckett v Nurse [1948] 1 KB 535.
[9] Elias v George Sahely & Co (Barbados) Ltd [1983] 1 AC 646.
[10] Stokes v Whicher [1920] 1Ch 441; Grime v Bartholomew [1972] 2 NSW LR 827.
[11] Where the memorandum or note does not meet the criteria in the Act, a contract not meeting the formalities may still be enforced in equity by the application of the doctrine of part performance. This doctrine arose from the necessity to prevent persons who were parties to oral agreements affected by the Statute of Frauds from unconscionably taking advantage of the lack of formalities when the other party had acted honestly and in the belief that the formalities had been met.
[12] Re Hoyle, Hoyle v Hoyle [1893] 1 Ch 84.
[13] Barkworth v Young (1856) 4 Drew 1.
[14] Gibson v Holland (1865) LR 1 CP 1, Smith-Bird v Blower [1939] 2 All ER 406, Baumann v James (1868) 3 Ch App 508; Burgess v Cox (1950) 2 All ER 1212; Johnston v Ball [2002] QSC 110 (26 April 2002).
[15] Buxton v Bellin (1877) 3 VLR 243.
[16] Hill v Hill [1947] Ch 231, 1 All ER 5.
[17] Re Holland, Gregg v Holland [1902] 2 Ch 360.
[18] Evans v Prothero (1852) 1 De GM & G 572; Long v Millar (1879) 4 CPD 450; Studds v Watson (1884) 28 ChD 305.
[19] Timmins v Moreland Street Property Co Ltd (1958)Ch 110.
[20] Godwin v Frances (1870) LR 5 CP 295; McBlain v Cross (1871) 25 LT 804.
[21] G + H Montage GmbH (formerly Grunzweig und Hartmann Montage GmbH) v Irvani (1990) 2 All ER 225.
[22] Parkersinclair Chemicals (Aust) Pty Ltd v Asia Associates Inc [2000] VSC 362; Federation Properties Pty Ltd v Tzioras [2001] VSC 125; Pico Holdings Inc v Turf Club Australia Pty Ltd [2002] QSC 086; Aga Khan v Firestone [1992] ILRM 31.
[23] Telegrams: Yaggy v B.V.D. Co (1970), 7 N.C. App. 590; Gibson v De La Salle Institute152 P.2d 774 (Cal. App. 1944). Facsimiles: WPP Group USA, Inc. v The Interpublic Group of Cos. Inc., slip op. (N.Y. Sup Ct. Oct 3, 1995); Beatty v First Exploration Fund 1987 & Co. 25 B.C.L.R.2d 377 (1988).
[24] See for example Shattuck v. Klotzbach 2001 Mass. Super. LEXIS 642, 14 Mass. L. Rep. 360 (Mass. Super. Ct. 2001) where the parties created an agreement of sale by e-mail. The court had no difficulty in concluding and in fact the court accepted without argument that the emails were writing for the purposes of the statute. The more difficult question for the court was wether the emails were signed in compliance with the Statute of Frauds. For further examples refer to Airport Associates, LP et al. v. H & M Realty Associates, LLC, 799 A.2d; 2002 R.I. LEXIS 165; The School Board of the Parish of St. Charles, et al v Roxco, Ltd and Maerican Home Assurance Company, Civil Action No. 01-0359 Section "T"(2), United States District Court for the Easter District of Louisiana, 2002 U.S. Dist. LEXIS 10098; Ober Consulting v. eCredit.Com, Inc., 2000 Mass. Super. LEXIS 619.
[25] Refer to Reed C, Digital Information Law - Electronic Documents and Requirements of Form, 1996.
[26] See Macdonald E & Poyton D, "A particular problem for e-commerce: Section 3 of the Unfair Contract Terms Act 1977" [2003] 3 WebJCL and Reed C, Digital Information Law - Electronic Documents and Requirements of Form, 1996.
[27] [1998] 1 WLR 1404.
[28] Ibid at 1411 per Otton LJ. Similarly, in Lockheed-Arabia v Owen [1993] 3 All ER 641 Mann LJ was prepared to give the definition of writing in the Acts Interpretation Act 1978 (UK) an expansive meaning in accordance with technological change. His Lordship concluded that a photocopy was writing.
[29] Wilkens v Iowa Insurance Commissioner 457 NW 2d 1 (Iowa 1990).
[30] In re Real Networks Inc Privacy Litigation 2000 US Dist Lexis 6584 (ND Ill May 11 2000).
[31] Macdonald E & Poyton K, "A particular problem for e-commerce: Section 3 of the Unfair Contract Terms Act 1977" [2003] 3 Web JCL.
[32] See In the Acts Interpretation Act 1954 (Qld), the word "writing" is defined to include "any mode of representing or reproducing words in a visible form".
[33] December 2001, paras [3.12] - [3.23]. Available at http://www.lawcom.gov.uk/
[34] The Commission relies extensively upon the views of Professor Reed in Digital Information Law - electronic Documents and Requirements of Form.
[35] Cf Stidolph v American School in London Educational Trust Ltd [1969] 20 P&CR 802 at 805 at Edmund Davies LJ.
[36] Hastie & Jenkerson v McMahon [1991] 1 All ER 255 at 260 per Woolf LJ (as he then was).
[37] Refer to note 9.
[38] Derby & Co v Weldon (No 9) [1991] 1 WLR 652; Victor Chandler International Ltd v Customs and Excise Commissioners [2000] 1 WLR 1296 at 1302 per Sir Richard Scott VC.
[39] See for example Acts Interpretation Act 1954 (Qld), s 36; Interpretation Act 1987 (NSW) s. 21: "writing includes printing, photography, photocopying, lithography, typewriting and any other mode of representing or reproducing words in visible form"; Interpretation of Legislation Act 1984 (Vic) s. 38: "writing includes all modes of representing or reproducing words, figures or symbols in a visible form and expressions referring to writing shall be construed accordingly"; Interpretation Act 1984 (WA) s. 5: "writing and expressions referring to writing include printing, photography, photocopying, lithography, typewriting and any other modes of representing or reproducing words in visible form"; Interpretation Act 1978 (NT) s. 26: "In an Act, words, expressions and provisions referring to writing shall be construed as including references to any mode of representing or reproducing words, figures or symbols in a visible form whether or not an optical, electronic, mechanical or other means or process must be used before they can be perceived"; Acts Interpretation Act 1915 (SA) s. 4: "writing" includes any visible form in which words may be reproduced or represented; Acts Interpretation Act 1931 (Tas) s. 24(b): "expressions referring to writing shall be construed as including references to any mode of representing or reproducing words, figures, or symbols in a visible form".
[40] Similar legislation has been enacted in every Australian jurisdiction: Electronic Transactions (Northern Territory) Act 2000 (NT), s 8; Electronic Transactions Act 2000 (NSW), s 8; Electronic Transactions Act 2000 (SA), s 8; Electronic Transactions Act 2000 (Tas), s 6; Electronic Transactions (Victoria) Act 2000 (Vic), s 8; Electronic Transactions Bill 2001 (WA), s 8; Electronic Transactions Act 2001 (ACT), s 8
[41] Section 10(5): making or lodging a claim, giving sending or serving notification, lodging a return, making a request.
[42] Similar provisions apply in other Australian jurisdictions: Imperial Acts (Substituted Provisions) Act 1986 (ACT), Sch 2 Pt 11 cl 4; Conveyancing Act 1919 (NSW), s 54A; Law of Property Act 2000 (NT), s 62; Law of Property Act 1936 (SA), s 26(1); Conveyancing Law of Property Act 1884 (Tas), s 9; Instruments Act 1958 (Vic), s 136; Statute of Frauds 1677 (Imp) (WA), s 4.
[43] Note that the writing provision of the UNCITRAL Model Law on Electronic Commerce specifically provides that its writing provision applies whether the requirement (where the law requires the information to be in writing) is in the form of an obligation or whether the law simply provides consequences for the information not being in writing.
[44] See Sneddon M, "Legislation to facilitate electronic signatures and records: Exceptions, standards and the impact of the Statute Book" (1998) University of New South Wales Law Journal 334, 360.
[45] The corresponding provision dealing with writing in the Commonwealth ETA is s 9(2)(a) Electronic Transactions Act 1999 (Cth).
[46] Qld ETA s 6 dictionary.
[47] As an example: a person may send a letter by email indicating that any negotiations for a contract should take place in paper form and not electronically. In such a case, the mere act of sending an e-mail would not be considered consent.
[48] Both the New South Wales and Victorian legislation allow for certain types of documents or contracts to be excluded from the operation of the Act. Early indication was that land transactions were to be excluded but the Electronic Transactions (Victoria) Regulations 2000 currently only exclude wills, codicils and other testamentary instruments.
[49] Commenced 18 October 2002.
[50] Section 18 provides: "A legal requirement that information be in writing is met by information that is in electronic form if the information is readily accessible so as to be useable for subsequent reference.
[51] Section 15 provides: "When legal requirement can be met by electronic means: 1) A legal requirement can be met by electronic means if the applicable provisions in subpart 2, and any applicable regulations made under section 36,are complied with. 2) For the purposes of this Part, legal requirement--- (a) means a requirement in an enactment to which this Part applies; and; (b) includes a provision in an enactment to which this Part applies that provides consequences that depend on whether or not the provision is complied with".
[52] Royal assent was received on 26 February 2002 and commences in October 2003.
[53] Section 91(10) Land Registration Act 2002 (UK). The Electronic Communications Act (2000) (UK) was introduced to help build confidence in electronic commerce by removing the legal obstacles that stand in the way of electronic commerce and establishing a voluntary licensing scheme for cryptography service providers.
[54] See s 91(5).
[55] Explanatory memorandum note 148.
[56] Hereafter referred to as UETA. The UETA was approved by the National Conference of Commissioners on Uniform State Laws at its annual meeting in August 1999.
[57] The Electronic Signatures in Global and National Commerce Act ("E-Sign Act"), which was signed into law on 30 June 2000, was enacted by Congress as an interim measure to ensure the validity of electronic signatures until the adoption of UETA by all the States. The E-Sign Act is based on the UETA and is also designed to promote electronic commerce by placing electronic records and electronic signatures on par with their paper and ink counterparts. Most provisions of the E-Sign Act, in particular, the ones relevant to electronic conveyancing or contracting in general (discussed below), are similar to the UETA. The UETA provisions that were omitted from E-Sign are: those governing attribution of electronic signatures, the time when messages are deemed sent or received, mistakes in electronic contracting, admissibility of electronic records as evidence, electronic documents of title or promissory notes not secured by real property, and the manner in which paper processes will be converted to electronic processes by state governments.
[58] See UETA, s 3(a) which provides: "Except as otherwise provided in subsection (b), this [Act] applies to electronic records and electronic signatures relating to a transaction. Section 3(b) lists the exceptions to the UETA. Specifically, UETA will not apply to a transaction to the extent that it is governed by: laws governing the creation and execution of wills and codicils and testamentary trusts, the Uniform Commercial Code (except ss 1-107 and 1-206 Article 2 and Article 2A), and UCITA. Note that the earlier drafts of the UETA excluded real estate transactions from its applicability due to fear of potential problems with electronic delivery and recording of deeds: See Draft for discussion only of UETA, National Conference of Commissioners on Uniform State Laws, 15August 1997, 105(a)(4) (Aug. 15, 1997), at http://www.law.upenn.edu/bll/ulc/uecicta/ect897.htm (excluding the Act's applicability to any rules of law relating to the conveyance of real property). Although the final draft of UETA does not exclude real estate transactions, the drafters still expressed their concern in the preface to the current UETA: see Preface to UETA (1999): Real estate transactions were considered potentially troublesome because of the need to file a deed or other instrument for protection against third parties. Because no form of filing effects the efficacy of a real estate purchase contract, or even a deed, between the parties, the question was raised why these transactions should not be validated by this Act if done via an electronic medium. No sound reason was found . . . . An exclusion of all real estate transactions would be particularly unwarranted in the event that a State chose to convert to an electronic recording system, at p 1.
[59] Uniform Electronic Transactions Act 1999, s 3(a). This is different to E-Sign which applies to electronic records and signatures "relating to" transactions in or affecting interstate or foreign commerce: E-Sign section 101(a).
[60] Uniform Electronic Transactions Act 1999 (US), s 2(16). The comments to Uniform Electronic Transactions Act provide an example of a transaction: "the closing of a business purchase transaction via facsimile transmission of documents or even electronic mail. In such a transaction, all parties may participate through electronic conferencing technologies. At the appointed time all electronic records are executed electronically and transmitted to the other party. In such a case, the electronic records and electronic signatures are validated under this Act, obviating the need for "in person" closings": see Uniform Electronic Transactions Act 1999 (US), comments to s 2, comment 12.
[61] See s 5 Uniform Electronic Transactions Act which provides: (a) This [Act] does not require a record or signature to be created, generated, sent, communicated, received, stored, or otherwise processed or used by electronic means or in electronic form. (b) This [Act] applies only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct. (c) A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. The right granted by this subsection may not be waived by agreement. This section is similar in effect to s 11 of the Queensland Electronic Transactions Act.
[62] Witte D, "Comment: Avoiding the un-real estate deal: Has the Uniform Electronic Transactions Act gone too far?" (2002) 35 John Marshall Law Review 311 at 321. Also see Uniform Electronic Transactions Act 1999 (US), comment 4 to s 5(b).
[63] Uniform Electronic Transactions Act 1999 (US), s 2(7).
[64] "Electronic" is defined as "relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities": see Uniform Electronic Transactions Act 1999 (US), section 2(5).
[65] See Uniform Electronic Transactions Act 1999 (US), comments to s 2, comment 13. The term "record" is defined as "information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form": see Uniform Electronic Transactions Act 1999 (US), s 2(13).
[66] See Uniform Electronic Transactions Act 1999 (US), comments to s 2, comment 6.
[67] UETA comment provides an example: A sends the following e-mail to B: "I hereby offer to buy 100 widgets for $1000, delivery next Tuesday. /s/ A." B responds with the following e-mail: "I accept your offer to purchase 100 widgets for $1000, delivery next Tuesday. /s/ B." In this case the analysis is the same as in Illustration 1 except that here the records otherwise satisfy the requirements of UCC s 2-201(1). The transaction may not be denied legal effect solely because there is not a pen and ink "writing" or "signature".
[68] "Contract" is defined in s 2(4) UETA as "the total legal obligation resulting from the parties' agreement as affected by this [Act] and other applicable law".
[69] See Sneddon M, "Legislation to facilitate electronic signatures and records: Exceptions, standards and the impact of the Statute Book" (1998) University of New South Wales Law Journal 334, 360.
[70] This is similar to the Qld ETA.
[71] Both the New South Wales and Victorian legislation allow for certain types of documents or contracts to be excluded from the operation of the Act. Early indication was that land transactions were to be excluded but the Electronic Transactions (Victoria) Regulations 2000 currently only exclude wills, codicils and other testamentary instruments.
[72] Uniform Electronic Transactions Act 1999 (US) comments to s 7, comment 3 provides an example: "A sends the following e-mail to B: "I hereby offer to buy 100 widgets for $1000, delivery next Tuesday. /s/ A." B responds with the following e-mail: "I accept your offer to purchase 100 widgets for $1000, delivery next Tuesday. /s/ B." In this case the analysis is the same as in Illustration 1 except that here the records otherwise satisfy the requirements of UCC Section 2-201(1). The transaction may not be denied legal effect solely because there is not a pen and ink "writing" or "signature".
[73] "Contract" is defined in s 2(4) Uniform Electronic Transactions Act 1999 (US) as "the total legal obligation resulting from the parties' agreement as affected by this [Act] and other applicable law".
[74] Sneddon M, "Legislation to facilitate electronic signatures and records: Exceptions, standards and the impact of the Statute Book" (1998) University of New South Wales Law Journal 334, 360.