Is the contract our Kansas counterparty signed electronically enforceable?
Within the act's scope, yes. 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; if a law requires a record to be in writing, an electronic record satisfies the law; and if a law requires a signature, an electronic signature satisfies the law (K.S.A. 16-1607). The act applies only to transactions between parties each of which has agreed to conduct transactions by electronic means, and whether they so agreed is determined from the context and surrounding circumstances, including the parties' conduct (K.S.A. 16-1605(b)). Electronic form is not the same as an electronic signature: K.S.A. 16-1602(i) defines an electronic signature as "an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record", and in Sigg v. Coltrane the Court of Appeals refused to treat a document drafted and e-mailed by the party to be charged as signed, holding of the contrary proposition that "This is simply not the law under K.S.A. 16-1601 et seq."
The trap
The scope section is where an electronic-signature argument usually fails. The act does not apply to a transaction to the extent it is governed by a law governing the creation and execution of wills, codicils or testamentary trusts, or by the uniform commercial code other than K.S.A. 84-1-306 and articles 2 and 2a (K.S.A. 16-1603(b)), so a sale or lease of goods is inside the act while a record governed by the UCC's other articles is outside it to that extent, although subsection (c) brings such a record back in to the extent it is governed by a law other than those specified. Consent is the other threshold, and it is asymmetric: a party who agrees to conduct one transaction electronically may refuse to conduct others that way, and "The right granted by this subsection may not be waived by agreement" (K.S.A. 16-1605(c)). That non-waivable refusal right is the exception and not the pattern: "Except as otherwise provided in this act, the effect of any of its provisions may be varied by agreement." And clearing the act settles only the form question - a transaction subject to it "is also subject to other applicable substantive law", so nothing here answers whether a contract was formed at all. Consent is also proved on the record, and its absence is fatal: in Sigg v. Coltrane the court found "there is no evidence that this transaction meets the requirements of K.S.A. 16-1605(b)" and that there was "absolutely nothing in the record that indicates that Sigg and the Coltranes agreed to conduct their transactions by electronic means."
10 authorities
- statuteK.S.A. 16-1607enactment date not established
The words that state the rule
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.
- statuteK.S.A. 16-1603enactment 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; and (2) the uniform commercial code, other than K.S.A. 2025 Supp. 84-1-306 and articles 2 and 2a of chapter 84 of the Kansas Statutes Annotated, and amendments thereto.
- statuteK.S.A. 16-1603enactment date not established
The words that state the rule
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).
- statuteK.S.A. 16-1605enactment 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.
- statuteK.S.A. 16-1605enactment date not established
The words that state the rule
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.
- statuteK.S.A. 16-1602enactment date not established
The words that state the rule
"Electronic signature" means an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
The words that state the rule
Sigg cites no authority for her conclusion that the Coltranes’ electronically drafting and e-mailing a document constitutes an electronic signature as contemplated by the Act. There is no evidence in the record that either the e-mail cover sheet or the “Offer to Purchase Real Estate” attached to it bears the electronic signature of either Daniel or Tanya Coltrane as defined by the Act. Instead, Sigg’s position would require us to endorse the proposition that because the “Offer to Purchase Real Estate” was sent electronically to the daughter of Sigg’s agent that that alone constitutes a signature. This is simply not the law under K.S.A. 16-1601 et seq.
The words that state the rule
Moreover, there is no evidence that this transaction meets the requirements of K.S.A. 16-1605(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.” There is absolutely nothing in the record that indicates that Sigg and the Coltranes agreed to conduct their transactions by electronic means. In fact, there is nothing in the record that establishes any actual agreement existed between Sigg and the Coltranes.
- statuteK.S.A. 16-1605enactment 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.
- statuteK.S.A. 16-1603enactment date not established
The words that state the rule
(d) A transaction subject to this act is also subject to other applicable substantive law.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.