Is this click-through or e-signed agreement binding in New Jersey?
Under New Jersey'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; an electronic record satisfies a law requiring a writing; and an electronic signature satisfies a law requiring a signature. Attribution is its own 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, and its effect is determined from the circumstances including the parties' agreement (§ 12A:12-9). A transaction subject to the Act remains subject to other applicable substantive law (§ 12A:12-3(e)).
The trap
The Act is not self-executing. § 12A:12-5(b) applies it ONLY to transactions between parties each of which has agreed to conduct transactions by electronic means, and that agreement is determined from the context and surrounding circumstances including the parties' conduct, so the threshold question in New Jersey is assent to transact electronically, not the signature technology; in Shelton, the one New Jersey Supreme Court case we hold, that threshold was passed without argument. A party who agrees to transact electronically may refuse to do so for OTHER transactions, and that right cannot be waived by agreement (§ 12A:12-5(c)). Excluded subject matter under § 12A:12-3: wills, codicils and testamentary trusts (that is subsection b., and subsection d. claws part of it back: the Act still applies to a record or signature so excluded to the extent it is governed by a law other than those specified in subsection b.); court orders, notices and official court documents; notices of utility cancellation, of default/acceleration/repossession/foreclosure/eviction or right to cure under a credit agreement secured by or a rental agreement for a primary residence, of cancellation of health or life insurance benefits, and of product recall or material product failure risking health or safety; and hazardous-materials shipping documents. Those are exactly the notices a contract most often tries to send by email.
8 authorities
- statuteN.J. Stat. Ann. § 12A:12-7enactment date not established
The words that state the rule
7. 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.
- statuteN.J. Stat. Ann. § 12A:12-5enactment date not established
The words that state the rule
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.
- statuteN.J. Stat. Ann. § 12A:12-3enactment date not established
The words that state the rule
b. This 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. c. This act does not apply to: (1) court orders or notices or official court documents (including briefs, pleadings and other writings) required to be executed in connection with court proceedings; (2) any notice of: (a) the cancellation or termination of utility services (including water, heat and power); (b) the default, acceleration, repossession, foreclosure or eviction, or the right to cure, under a credit agreement secured by, or a rental agreement for, a primary residence of an individual; (c) the cancellation or termination of health insurance benefits or life insurance benefits (excluding annuities); or (d) the recall of a product, or material failure of a product, that risks endangering health or safety; or (3) any document required to accompany any transportation or handling of hazardous materials, pesticides or other toxic or dangerous materials.
- statuteN.J. Stat. Ann. § 12A:12-5enactment 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.
- statuteN.J. Stat. Ann. § 12A:12-9enactment 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. b. The effect of an electronic record or electronic signature attributed to a person under subsection a. of this section is determined from the context and surrounding circumstances at the time of its creation, execution or adoption, including the parties' agreement, if any, and as otherwise provided by law.
- statuteN.J. Stat. Ann. § 12A:12-3enactment date not established
The words that state the rule
e. A transaction subject to this act is subject also to other applicable substantive law.
- statuteN.J. Stat. Ann. § 12A:12-3enactment date not established
The words that state the rule
d. This act applies to an electronic record or electronic signature otherwise excluded from the application of this act 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.
The words that state the rule
We reject the argument advanced by Restaurant.com that the transactions between it and plaintiffs cannot be considered consumer contracts because they are not in writing. In 2001, the Legislature enacted the Uniform Electronic Transactions Act (UETA), N.J.S.A. 12A:12-1 to -26, to address the steady shift from traditional paper transactions to electronic transactions. See L. 2001, c. 116, § 6. The UETA governs transactions between parties who have agreed to conduct their transaction by electronic means. N.J.S.A. 12A:12-5(b). According to the UETA, a contract cannot “be denied legal effect ... solely because an electronic record was used in its formation.” N.J.S.A. 12A:12-7(b).
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.