Is a contract signed electronically enforceable in Delaware, and does it satisfy a writing or signature requirement?
Yes, within the chapter's scope and absent contrary agreement. Under Delaware's Uniform Electronic Transactions Act, a record or signature may not be denied legal effect or enforceability solely because it is in electronic form; a contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation; where a law requires a record to be in writing, an electronic record satisfies it; and where a law requires a signature, an electronic signature satisfies it. The chapter does not apply to the extent a transaction is governed by the law of wills, by the UCC other than Articles 2 and 2A (and two Article 1 sections), by the Uniform Computer Information Transactions Act, by the General Corporation Law, the Professional Service Corporation Act, the LLC, LP and partnership Acts or the Statutory Trust Act, or by the bank corporation laws (§ 12A-103(b)), so a Delaware LLC agreement or a negotiable instrument is outside the chapter to the extent those laws govern it, though § 12A-103(c) brings the record or signature back INSIDE the chapter to the extent it is governed by any other law, and § 12A-103(d) leaves a covered transaction subject to other applicable substantive law besides. And the Act applies only to transactions between parties each of which has agreed to conduct transactions by electronic means, an agreement determined from the context and surrounding circumstances, including the parties' conduct (§ 12A-105(b)).
The trap
The Act is consent-based, not automatic: § 12A-105(b) makes the chapter apply only where each party has agreed to transact electronically, so the enforceability rule presupposes that agreement (which may be shown by conduct), and under § 12A-105(c) a party that agreed to one electronic transaction may refuse others, a right that cannot be waived by agreement. The default runs the other way for the rest of the chapter: under § 12A-105(d) the effect of its provisions may be varied by agreement except where the chapter provides otherwise (as § 12A-105(c) does and § 12A-107 does not), so a contractual requirement of an original handwritten signature is not cured by § 12A-107. Section 12A-117 is the forum provision, and both of its subsections matter: (a) lets the parties to an electronic contract choose an exclusive judicial forum, subjects that choice to §§ 1-301 and 2708 of this title, and makes it unenforceable in a consumer contract if the choice is unreasonable and unjust; (b) says a judicial forum specified in an agreement is not exclusive unless the agreement expressly so provides. And the electronic-form rule cures FORM only: 6 Del. C. § 2714's requirement that an agent's authority to sign for the party to be charged be given in writing is not dispensed with, though where the chapter applies, § 12A-107(c) lets an electronic record BE that writing.
7 authorities
- statute6 Del. C. § 12A-107enactment date not established
The words that state the rule
(a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form. (b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation. (c) If a law requires a record to be in writing, an electronic record satisfies the law. (d) If a law requires a signature, an electronic signature satisfies the law.
- statute6 Del. C. § 12A-105enactment date not established
The words that state the rule
(b) This chapter 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. (d) Except as otherwise provided in this chapter, the effect of any of its provisions may be varied by agreement. The presence in certain provisions of this chapter of the words “unless otherwise agreed,” or words of similar import, does not imply that the effect of other provisions may not be varied by agreement.
- statute6 Del. C. § 12A-117enactment date not established
The words that state the rule
A judicial forum specified in an agreement is not exclusive unless the agreement expressly so provides.
- statute6 Del. C. § 12A-103enactment date not established
The words that state the rule
This chapter does not apply to a transaction to the extent it is governed by: (1) A law governing the creation and execution of wills or codicils; (2) The Uniform Commercial Code other than Sections 1-107 [see now Section 1-306] and 1-206 [former version of Section 1-206, to which this reference referred, has been repealed], Article 2, and Article 2A; (3) The Uniform Computer Information Transactions Act; (4) The General Corporation Law of the State [§§ 101 to 398 of Title 8], the Delaware Professional Service Corporation Act [§ 601 et seq. of Title 8], the Delaware Revised Uniform Partnership Act [§ 15-101 et seq. of this title], the Delaware Revised Uniform Limited Partnership Act [§ 17-101 et seq. of this title], the Delaware Limited Liability Company Act [§ 18-101 et seq. of this title], the Delaware Uniform Partnership Law and the Delaware Statutory Trust Act [§ 3801 et seq. of Title 12]; (5) The Corporation Law for State Banks and Trust Companies, Credit Card Institutions and the Corporation Law for State Savings Banks in Chapters 7, 15 and 16, respectively, of Title 5. (c) This chapter applies to an electronic record or electronic signature otherwise excluded from the application of this chapter under subsection (b) of this section to the extent it is governed by a law other than those specified in subsection (b) of this section. (d) A transaction subject to this chapter is also subject to other applicable substantive law.
- statute6 Del. C. § 12A-117enactment date not established
The words that state the rule
(a) The parties to an electronic contract may choose an exclusive judicial forum; provided, however, that the provisions of §§ 1-301 and 2708 of this title shall apply to such choice; provided further that if the contract is a consumer contract the choice is not enforceable if such choice is unreasonable and unjust.
- statute6 Del. C. § 12A-105enactment date not established
The words that state the rule
(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.
- statute6 Del. C. § 2714enactment date not established
The words that state the rule
No action shall be brought to charge any person upon any agreement made upon consideration of marriage, or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of 1 year from the making thereof, or to charge any person to answer for the debt, default, or miscarriage, of another, in any sum of the value of $25 and upwards, unless the contract is reduced to writing, or some memorandum, or notes thereof, are signed by the party to be charged therewith, or some other person thereunto by the party lawfully authorized in writing; except for goods, wares and merchandise, sold and delivered, money loaned and other matters which are properly chargeable in an account, in which case the oath or affirmation of the plaintiff, together with a record regularly and fairly kept, shall be allowed to be given in evidence in order to charge the defendant with the sums therein contained.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.