Vail Daily column: Law in the electronic age
In one form or another, the law is as old as society itself. Pack animals that we are, rules and rights and sanctioned retribution developed as soon as man rose up on two legs. Law may, after all, be defined simply as the principles and regulations established in a community by some authority and applicable to its people. Laws have been around since we have been around.
If law is an evening star, the electronic age is the first twinkling light on the morning horizon. If the law emerged with man from the primordial inklings of social intercourse, the information age dates back — at its furthest — not more than forty years. The electronic age is a mere bud on the tallest limb of a very ancient spruce.
It has been written
And yet, the information age is ubiquitous. We live and act by the dings and chimes and instant news alerts that inform our every waking moment. I am writing this on virtual paper in electronic form subject to the protocols of some mysterious binary code. I will scoot the electronic imprint along a hydra-headed optic line to the editors who, by some hocus-pocus will help it ultimately see print. But the chances are even that you will read this on the internet, where swirling electrons enable is diaphanous existence.
It used to be that when lawyers were preparing for trial, they launched discovery of all documents relative to the suit and while this still is true, the definition of what is written has expanded to heretofore unrecognizable forms. A writing now means much more than simply ink to paper. It can mean any imprint in any form, including electronic form, however stored whether in corporeal being, electronically, or otherwise.
How the law itself is interpreted is also changing with the times. Take this recent wrinkle I encountered.
The statute of frauds is as old and moldy as Mother England from whence many of our laws arose.
The statute of frauds provides, “Every contract for the leasing for a longer period than one year or for the sale of any lands or any interest in lands is void unless the contract or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party by whom the lease or sale is to be made.”
If you lease real property, such as a house, an apartment, a commercial unit or any other land, for more than one year, the lease agreement must be in writing rather than an oral agreement or a handshake deal. Similarly, the purchase of any real property must be upon an agreement reduced to writing. And, whether a sale or a lease for greater than one year, the written agreement must be subscribed by the party to be bound by the lease or purchase.
“Subscribed” means “signed.” Not only must the agreement be in writing but it must also be signed.
But there’s a rub or two.
First of all, is an agreement that exists only electronically written? Uniformly, the courts have said yes.
But that doesn’t end it. What about subscription?
To answer that, let’s ask the question, why must things be signed?
A document must be signed to prove that you are who you are and that you agree to the terms of the document you’re signing. If documents were not signed, then an argument could arise that you had not yet agreed to final terms. While that’s all well-and-good, in the modern world, a lot of what we do either does not allow us to add a signature or it is inconvenient for us to do so. What if, instead of a signature, I say something definitive in an email such as, “Okay, you’ve got a deal!”
Chances are when it came to enforce what you might have thought was a binding agreement, the courts will say, “Good try but, ah… no.” No subscription means no deal.
What about some other form of signature such as an electronic one?
While the courts of different jurisdictions are divided, most would say, “Well, sure. Welcome to the 21st century. Your electronic signature sealed the deal and said that negotiations had ended and terms of the agreement had been reached.
Although an aside, and far removed from the dizzying electronic world that is the focus of this column, what about a thumbprint or the like? What if, instead of signing, you dipped your thumb into an inkwell and, with some deliberation, left your mark? Yeah probably, particularly since some folks can’t write, owing either to disability or illiteracy. Best, though, in such a circumstance to have a witness who can testify to the act of leaving your thumbprint being of your own free will.
The world is changing at the speed of light. And like the apocryphal story of the duck, the law, while steely calm on the surface, is paddling like hell just to keep up.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at email@example.com and firstname.lastname@example.org.