Is this contract unenforceable in Nebraska because it was signed electronically?
No. Electronic form is not a defence in Nebraska, but the Act that says so protects you only if both sides agreed to do business electronically, and only outside two exclusions. Nebraska's Uniform Electronic Transactions Act, Neb. Rev. Stat. § 86-634, is categorical: “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.” An electronic signature is defined broadly by § 86-621 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 § 86-638 extends the Act to notarisation and acknowledgment. The consent gate is § 86-632(2): “The 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.” The exclusions are in § 86-630(2): “The act does not apply to a transaction to the extent it is governed by: (a) A law governing the creation and execution of wills, codicils, or testamentary trusts; or (b) The Uniform Commercial Code other than article 2 and article 2A.” Subsection (3) takes most of that back: the Act still “applies to an electronic record or electronic signature otherwise excluded from the application of the act under subsection (2) of this section to the extent it is governed by a law other than those specified in subsection (2) of this section.” And § 86-631 dates it: the Act “applies to any electronic record or electronic signature created, generated, sent, communicated, received, or stored on or after July 13, 2000.”
The trap
Nebraska's distinctive trap is that a record the recipient cannot save is worthless against them. Neb. Rev. Stat. § 86-635(3): “If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient”, and § 86-635(1) explains what “inhibits” means: “An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.” A click-through that shows the terms in a scroll box with printing and copying disabled is the exact failure mode, and § 86-635(4) says “The requirements of this section may not be varied by agreement, but:”, and the two exceptions that follow reach only subsection (1)'s capable-of-retention requirement and a first-class-mail delivery method, not subsection (3), so a consent term in your own document cannot fix a record the recipient cannot save. Second trap: you cannot lock the counterparty into electronic dealing. § 86-632(3): “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.” A clause requiring all future notices, amendments and terminations to be electronic is unenforceable to that extent. Third: do not read the Act as covering everything. It reaches only a “transaction”, defined by § 86-629 as “an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or governmental affairs”, and § 86-630(4) adds that “A transaction subject to the act is also subject to other applicable substantive law”. Electronic form cures form, not substance, so Nebraska's statute of frauds, its writing-and-signature requirements and its parol evidence rule all still apply to the deal. Fourth, and it is a Nebraska-specific hazard: there is a SECOND, older electronic-signature statute, Neb. Rev. Stat. § 86-611, whose five-attribute test (“unique to the person using it”, “capable of verification”, “under the sole control of the person using it”, invalidated if the data changes, and conforming to Secretary of State rules) sounds like a general requirement and is not one. Its subsection (2) is permissive: in any written communication any party “may affix” a digital signature, and it takes manual-signature effect only if all five attributes are met; subsection (3) is the state-agency provision; its own definition of “Electronic signature” in subsection (9)(a) is “a unique access code or other unique electronic identifier assigned or approved by the state agency”, and subsection (5) says it “shall not be construed to invalidate digital signatures, electronic signatures, or electronic communications which are valid under any other applicable law.” Subsection (6) adds that the use or acceptance of a digital signature is “at the option of the parties to the communication” and that the section does not “require a person to use or permit the use of a digital signature or electronic signature.” So the five-attribute test is a condition of getting manual-signature effect from a digital signature, not a requirement a private contract has to meet.
20 authorities
- statuteNeb. Rev. Stat. § 86-634enactment 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.
- statuteNeb. Rev. Stat. § 86-634enactment 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 its formation.
- statuteNeb. Rev. Stat. § 86-634enactment date not established
The words that state the rule
If a law requires a record to be in writing, an electronic record satisfies the law. (4) If a law requires a signature, an electronic signature satisfies the law.
- statuteNeb. Rev. Stat. § 86-621enactment 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.
- statuteNeb. Rev. Stat. § 86-632enactment date not established
The words that state the rule
The 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.
- statuteNeb. Rev. Stat. § 86-632enactment 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.
- statuteNeb. Rev. Stat. § 86-630enactment date not established
The words that state the rule
The act does not apply to a transaction to the extent it is governed by: (a) A law governing the creation and execution of wills, codicils, or testamentary trusts; or (b) The Uniform Commercial Code other than article 2 and article 2A. (3) The act applies to an electronic record or electronic signature otherwise excluded from the application of the act under subsection (2) of this section to the extent it is governed by a law other than those specified in subsection (2) of this section.
- statuteNeb. Rev. Stat. § 86-630enactment date not established
The words that state the rule
A transaction subject to the act is also subject to other applicable substantive law.
- statuteNeb. Rev. Stat. § 86-631enactment date not established
The words that state the rule
The Uniform Electronic Transactions Act applies to any electronic record or electronic signature created, generated, sent, communicated, received, or stored on or after July 13, 2000.
- statuteNeb. Rev. Stat. § 86-635enactment date not established
The words that state the rule
If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient.
- statuteNeb. Rev. Stat. § 86-635enactment date not established
The words that state the rule
If parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send, or deliver information in writing to another person, the requirement is satisfied if the information is provided, sent, or delivered, as the case may be, in an electronic record capable of retention by the recipient at the time of receipt. An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.
- statuteNeb. Rev. Stat. § 86-635enactment date not established
The words that state the rule
The requirements of this section may not be varied by agreement, but: (a) To the extent a law other than the act requires information to be provided, sent, or delivered in writing but permits that requirement to be varied by agreement, the requirement under subsection (1) of this section that the information be in the form of an electronic record capable of retention may also be varied by agreement; and (b) A requirement under a law other than the act to send, communicate, or transmit a record by first-class mail, postage prepaid or regular United States mail, may be varied by agreement to the extent permitted by the other law.
- statuteNeb. Rev. Stat. § 86-629enactment date not established
The words that state the rule
Transaction means an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or governmental affairs.
- statuteNeb. Rev. Stat. § 86-638enactment date not established
The words that state the rule
If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.
- statuteNeb. Rev. Stat. § 86-611enactment date not established
The words that state the rule
Electronic signature means a unique access code or other unique electronic identifier assigned or approved by the state agency for use in communications with the state agency
- statuteNeb. Rev. Stat. § 86-611enactment date not established
The words that state the rule
This section shall not be construed to invalidate digital signatures, electronic signatures, or electronic communications which are valid under any other applicable law.
- statuteNeb. Rev. Stat. § 86-611enactment date not established
The words that state the rule
In any written communication in which a signature is required or used, any party to the communication may affix a signature by use of a digital signature that complies with the requirements of this section. The use of a digital signature shall have the same force and effect as the use of a manual signature if and only if it embodies all of the following attributes: (a) It is unique to the person using it; (b) It is capable of verification; (c) It is under the sole control of the person using it; (d) It is linked to data in such a manner that if the data is changed, the digital signature is invalidated; and (e) It conforms to rules and regulations adopted and promulgated by the Secretary of State.
- statuteNeb. Rev. Stat. § 86-611enactment date not established
The words that state the rule
Digital signature means an electronic identifier, created by computer, intended by the person using it to have the same force and effect as a manual signature
- statuteNeb. Rev. Stat. § 86-611enactment date not established
The words that state the rule
Unless otherwise provided by law, the use or acceptance of a digital signature or an electronic signature shall be at the option of the parties to the communication. This section shall not be construed to require a person to use or permit the use of a digital signature or electronic signature.
- statuteNeb. Rev. Stat. § 86-612enactment date not established
The words that state the rule
Sections 86-612 to 86-643 shall be known and may be cited as the Uniform Electronic Transactions Act.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.