Is an electronically signed version of this contract valid in North Dakota, and do both sides have to agree to sign electronically?
Yes, North Dakota's Uniform Electronic Transactions Act gives an electronic record or signature the same legal effect as a paper one, but only as between parties who have agreed to transact electronically. N.D.C.C. § 9-16-06(1)-(2): "A record or signature may not be denied legal effect or enforceability solely because the record or signature is in electronic form," and "[a] contract may not be denied legal effect or enforceability solely because an electronic record was used in the contract's formation." That coverage is conditioned by N.D.C.C. § 9-16-04(2): "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 transactions by electronic means is determined from the context and surrounding circumstances, including the parties' conduct."
The trap
The chapter's applicability turns entirely on agreement-in-fact, not on a party's mere capacity to transact electronically: silence, or one party's unilateral practice of sending documents by email, does not by itself satisfy § 9-16-04(2)'s 'agreed to conduct transactions by electronic means' test, which looks at context and conduct on both sides. And even a party who has agreed to conduct SOME transactions electronically keeps a non-waivable right to refuse to do so for other transactions: § 9-16-04(3) states that right 'may not be varied by agreement.' Separately, § 9-16-06(3)-(4) only satisfies a writing or signature REQUIREMENT found in other law: it does not, on its own text, address a requirement that a record be an ORIGINAL or that a signature be witnessed or acknowledged in a particular way; those questions are addressed by other sections of the same chapter (§§ 9-16-10, 9-16-11) that were not read for this rule. Consent is per transaction, not once and for all: “If a party agrees to conduct a transaction by electronic means, this chapter does not prohibit the party from refusing to conduct other transactions by electronic means.” So agreeing to sign one document electronically does not commit a party to the next one. Two of the chapter's own rules bound this one in the other direction. Nobody is forced online: "This chapter 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." And apart from the non-waivable subsection, the chapter is a default regime: "Except as otherwise provided in this chapter, the effect of any of this chapter's provisions may be varied by agreement." No North Dakota decision applying the chapter was found: every published North Dakota opinion was searched for both section numbers in the hyphenated and the spaced spelling, and for the Act by name and by its initials, with no hits on any form.
5 authorities
- statuteN.D.C.C. § 9-16-06enactment date not established
The words that state the rule
A record or signature may not be denied legal effect or enforceability solely because the record or signature is in electronic form.
- statuteN.D.C.C. § 9-16-06enactment date not established
The words that state the rule
A contract may not be denied legal effect or enforceability solely because an electronic record was used in the contract's formation. - If a law requires a record to be in writing, an electronic record satisfies the law. - If a law requires a signature, an electronic signature satisfies the law.
- statuteN.D.C.C. § 9-16-04enactment date not established
The words that state the rule
This chapter 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. - 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 transactions by electronic means is determined from the context and surrounding circumstances, including the parties' conduct.
- statuteN.D.C.C. § 9-16-04enactment date not established
The words that state the rule
If a party agrees to conduct a transaction by electronic means, this chapter does not prohibit the party from refusing to conduct other transactions by electronic means. This subsection may not be varied by agreement.
- statuteN.D.C.C. § 9-16-04enactment date not established
The words that state the rule
Except as otherwise provided in this chapter, the effect of any of this chapter's 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. - Whether an electronic record or electronic signature has legal consequences is determined by this chapter and other applicable law.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.