Is an electronically signed version of this contract valid in South Dakota, and do both sides have to agree to sign electronically?
Yes, South Dakota's Uniform Electronic Transactions Act gives an electronic record or signature the same legal effect as a paper one, but the chapter applies only as between parties who have agreed to transact electronically. SDCL 53-12-2: "Except as otherwise provided in § 53-12-3, this chapter applies to electronic records and electronic signatures relating to a transaction." That coverage is conditioned by SDCL 53-12-8: "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 a transaction 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 between both sides, 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 § 53-12-8's "agreed to conduct transactions by electronic means" test, which looks at context and conduct on both sides. SDCL 53-12-3 also excludes several categories from the chapter entirely regardless of the parties' agreement: the Uniform Probate Code and other law governing wills, codicils, or testamentary trusts; most of the Uniform Commercial Code (everything except §§ 57A-1-107, 57A-1-206, and chapters 57A-2, 57A-2A, and 57A-9); and transactions under the Unified Judicial System's own rules. A drafter relying on the Act for a document within one of those excluded categories (a will, a negotiable instrument outside Article 2/2A/9, or a court filing) is relying on a chapter that, by its own § 53-12-3, does not reach it.
3 authorities
- statuteSDCL § 53-12-2enactment date not established
The words that state the rule
Except as otherwise provided in § 53-12-3 , this chapter applies to electronic records and electronic signatures relating to a transaction.
- statuteSDCL § 53-12-8enactment date not established
The words that state the rule
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 a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct.
- statuteSDCL § 53-12-3enactment date not established
The words that state the rule
This chapter does not apply to a transaction to the extent it is governed by: (1) The Uniform Probate Code or other law governing the creation and execution of wills, codicils, or testamentary trusts; (2) The Uniform Commercial Code other than §§ 57A-1-107 and 57A-1-206 , and chapters 57A-2 , 57A-2A , and 57A-9 ; and (3) Transactions under chapter 15-6 or other transactions involving the Unified Judicial System.