Give me your John Hancock on the Dotted Line
By: Lauren Marsicano
Give me your John Hancock on the Dotted Line
Welcome to the special edition of Maverick Monthly and the Legal Learning Corner. Today we are going to discuss the almighty signature and what it really means for contracts.
It's now generally accepted that the Declaration of Independence was not actually signed on the Fourth of July—that's just the day the document was formally dated, finalized, and adopted by the Continental Congress, which had officially voted for independence on July 2nd (the day John Adams thought we should celebrate). Early printed copies of the Declaration were signed by John Hancock and secretary Charles Thomson to be given to military officers and various political committees, but the bulk of the other 54 men signed an official finalized (and in larger print) copy on August 2, with others to follow at a later date. Hancock (the bold man of his day) signed his name again on the updated version.
Now, what does this have to do with the law? Well, a lot when we are talking about contracts.
For instance, just like the Declaration of Independence, contracts can be signed separately by the parties involved but remain effective. The clause often reads as follows: “This Agreement may be signed in counterparts, with facsimile and/or electronically transmitted signatures being deemed an original, all of which when signed by the respective Parties and taken together, constitute the full and final agreement of the Parties.” In fact, many agreements and contracts today are often not actually executed on the same date they were drafted or become effective or with all the parties present (unless statutorily required). Not only can contracts be executed on different days by different parties, but even a signature does not necessary have to look like a fully signature.
A signature by mark is an alternative to signing a full signature. The signer instead makes a mark (such as an "X"), scribble or other symbols on the document. Under the laws of many states, a mark is considered a signature and is treated as such. For documents requiring a notary, Florida has statutory acknowledgment and jurat certificate forms for use when a Notary notarizes a mark. Sometimes, not even a mark is necessary!
Although it may look different, checking those boxes confirming you have read the terms of service is actually a binding action, effectively acting like an e-signature. These are referred to as clickwrap agreements. A clickwrap is an online agreement between a user and a company that requires the user to click a box or a button before they download content, make a purchase, or use a website. The box or button confirms that the user agrees to an online contract with the company, and substitutes for the user's signature. Sometimes the agreements are many pages long and difficult to read, and often, the terms are on separate pages of the website. Privacy policies, terms of service and other user policies, as well as copyright policies, commonly utilize the clickwrap prompt. Clickwraps are common to signup processes for social media services like Facebook, Twitter, Instagram, etc. as part of installation processes of many software packages.
Interestingly enough, the term “clickwrap” is derived from the use of “shrink wrap contracts” commonly used in boxed software purchases, which “contain a notice that by tearing open the shrink wrap, the user assents to the software terms enclosed within.” I personally remember seeing these with the old AOL discs that got delivered when I was a kid (ugh, now I’m dating myself), and you can still see it on Microsoft and other physical software products today. In both cases, users are bound to the terms of the agreements mentioned, whether you actually read them or not (meaning you should say goodbye to your rights to those photos you post on Instagram!).
So if you want to sound like a history buff and contract coinsurer at your family's barbecue this 4th of July, point out that we're celebrating the adoption of the Declaration, not the signing of it, and maybe caution your friends about checking those clickwrap agreements so nonchalantly while boomeranging those fireworks. BOOM! #lawyered You’re welcome, America.
*This article is being offered for educational purposes only and is not legal advice. No attorney-client relationship has been formed, and you should always consult an attorney to discuss your unique situation.