Is this contract unenforceable because it was signed electronically?
No, where Illinois' Uniform Electronic Transactions Act applies: 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 solely because an electronic record was used in its formation, an electronic record satisfies a law requiring a writing and an electronic signature satisfies a law requiring a signature (815 ILCS 333/7). Attribution is a separate question: an electronic record or signature is attributable to a person if it was the act of the person, shown in any manner including the efficacy of a security procedure (815 ILCS 333/9(a)), and attribution settles whose act it was and not what the act does, because "[t]he effect of an electronic record or electronic signature attributed to a person under subsection (a) shall be determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties' agreement, if any, and otherwise as provided by law" (§ 9(b)), and a transaction inside the Act remains subject to other applicable substantive law (§ 3(d)).
The trap
Two thresholds decide it before § 7 does. The Act 'applies only to transactions between parties each of which has agreed to conduct transactions by electronic means', agreement being determined from the context and surrounding circumstances including the parties' conduct (815 ILCS 333/5(b)), so the enforceability of an e-signature in Illinois is a fact question about assent to the medium, and a party may refuse to conduct OTHER transactions electronically, a right that cannot be waived by agreement (§ 5(c)). And the scope section works as a general grant with one subtraction (the Act "applies to electronic records and electronic signatures relating to a transaction" except as subsection (b) provides (815 ILCS 333/3(a))), and (b) subtracts transactions governed by a law on wills, codicils or testamentary trusts and by the UCC other than §§ 1-107, 1-206, Article 2 and Article 2A (§ 3(b)(1)-(2)), so Article 3 instruments and Article 9 records sit outside the Act. And the Act is default law, not mandatory law: it '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' (§ 5(a)), and 'except as otherwise provided in this Act, the effect of any of its provisions may be varied by agreement' (§ 5(d)), so a contract may contract out of the Act's machinery, with § 5(c)'s unwaivable refusal right the stated exception, while whether an electronic record or signature has legal consequences 'is determined by this Act and other applicable law' (§ 5(e)). The published Act's source line is P.A. 102-38, eff. 6-25-21.
9 authorities
- statute815 ILCS 333/7enactment 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.
- statute815 ILCS 333/5enactment date not established
The words that state the rule
(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.
- statute815 ILCS 333/5enactment date not established
The words that state the rule
(d) Except as otherwise provided in this Act, the effect of any of its provisions may be varied by agreement. The presence in certain provisions of this Act 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. (e) Whether an electronic record or electronic signature has legal consequences is determined by this Act and other applicable law.
- statute815 ILCS 333/5enactment date not established
The words that state the rule
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.
- statute815 ILCS 333/3enactment date not established
The words that state the rule
(a) Except as otherwise provided in subsection (b), this Act applies to electronic records and electronic signatures relating to a transaction. (b) This Act does not apply to a transaction to the extent it is governed by: (1) a law governing the creation and execution of wills, codicils, or testamentary trusts; (2) The Uniform Commercial Code other than Sections 1-107 and 1-206, Article 2, and Article 2A.
- statute815 ILCS 333/5enactment 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.
- statute815 ILCS 333/3enactment date not established
The words that state the rule
(c) This Act applies to an electronic record or electronic signature otherwise excluded from the application of this Act under subsection (b) to the extent it is governed by a law other than those specified in subsection (b). (d) A transaction subject to this Act is also subject to other applicable substantive law.
- statute815 ILCS 333/9enactment date not established
The words that state the rule
(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.
- statute815 ILCS 333/9enactment date not established
The words that state the rule
(b) The effect of an electronic record or electronic signature attributed to a person under subsection (a) shall be determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties' agreement, if any, and otherwise as provided by law.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.