Note: This is an earlier, non-published version of Kuner and Miedbrodt, 'Written Signature Requirements and Electronic Authentication: A Comparative Perspective', 1999 EDI Law Review 143
Differences in the definition of "written signature" are influencing the course of national and international policies on electronic authentication, as the examples of the US and Germany demonstrate. US law has gradually been reducing the scope of handwritten signature requirements, and places the greatest emphasis on respecting the intent of the parties. German law also respects party autonomy, but requires that certain transactions be concluded by a handwritten signature (meaning pen on paper), with no possibility for derogation by the parties.
These differences in the definition of "signature" in national law have found expression in electronic authentication policy. US digital signature laws are generally directed toward removing barriers to the acceptance of electronic authentication and toward reduction of evidentiary uncertainties. By contrast, the German Digital Signature Law does not deal with the legal status of electronic signatures, but instead sets forth a high-security technical standard, motivated by similarly stringent requirements for pen-on-paper signatures. It is therefore not surprising that policymakers frequently have quite different concepts in mind when they discuss electronic signatures.
The international nature of the Internet makes it imperative that national definitions of "signature" be harmonized as they relate to electronic authentication. This can best be done by understanding the changing role of written signatures, educating policymakers and governments, and developing an internationally-oriented definition of "signature". A basis for such a definition could be a scalable set of signature requirements based on the security needs of the particular application, such as whether electronic authentication was used to establish identity, to demonstrate a particular attribute of the signatory, or for some other purpose.
The growth of the Internet and its global nature are forcing governments to find common solutions to regulatory questions, which requires understanding of how different legal systems treat common problems. A good example is the drafting of electronic authentication 1) or electronic signature legislation. As a technology designed to enable seamless, secure communication on the Internet, electronic authentication requires a flexible, internationally-oriented regulatory structure.
While there has been considerable regulatory activity concerning electronic authentication in recent years 2), misunderstandings about the differing roles of written signatures in different legal systems have contributed to difficulties in implementing global rules. Taking US and German law as examples, this article examines differences in the legal definition of "signature" and their implications for the national and international regulation of electronic authentication.
II. The Function of Written Signatures
In considering the function of written signatures, it is important to distinguish between the concepts of a "writing" and of a "handwritten signature". In both the US and Germany, almost any perceivable evidence may be considered to be "written", including electronic evidence. However, "signature" is a legal term of art which involves application of the rules described below.
Broadly speaking, a handwritten signature is intended to fulfill a variety of formal functions, such as the following that are often cited in the German legal literature:3)
- Finality function (Abchlußfunktion). The signature should make it clear that the signed document represents a completed declaration of will, and not just a draft which the signatory did not intend to be bound by.
- Cautionary function (Warnfunktion). A signatory should be made aware that by his signature he is entering into a binding transaction.
- Evidentiary function (Beweisfunktion). A party should in case of dispute be able to use a signature for evidentiary purposes.
However, these functions are limited by a further important principle, namely that of party autonomy. That is, in most cases a signatory should be able to rely on an expression of his will (such as a signature) being respected and not invalidated by the legal system for failure to meet a handwriting requirement, as long as it is clear from the circumstances that he intended to be bound by it. The decisive question then becomes how a legal system balances the interests listed above, which can be competing. For instance, respecting the will of parties who have agreed, e.g., that an "X" scratched onto tree bark is sufficient to convey a plot of land is clearly in a state of tension with the need to provide clear evidence of ownership of real estate and to warn parties against entering into such important transactions too lightly. It is therefore not surprising that many legal systems make enhanced evidentiary privileges or even legal validity for certain transactions dependent on the fulfillment of handwritten signature requirements.
Achieving an appropriate balancing of these interests is more difficult when dealing with electronic authentication than in the case of traditional paper signatures. First of all, paper signatures have existed for thousands of years, while electronic authentication has only recently begun to be widely used. Thus, the experience that legal systems have built up regarding paper signatures is largely lacking with regard to electronic ones. Secondly, there is great uncertainty about how to balance the relative security risks of paper signatures versus those of electronic signatures. While it is clear that digital technology makes it possible to forge or manipulate electronic signatures on a scale impossible in the case of paper signatures, it is also clear that paper signatures have never been particularly secure, and that the same digital technology makes possible a degree of security unheard of in the case of paper signatures (e.g., through the use of encryption technologies). This has understandably led to uncertainty among users about whether electronic signatures are secure or not, which has held back their broad acceptance.
III. Written Signatures in the Common Law (United States)
While the United States is actually composed of 51 legal systems (50 states and the federal government), it is possible to generalize to some extent about written signature requirements. Generally speaking, contracts and obligations do not have to be in writing unless the law requires otherwise.4) Other formal requirements in US law include the "contract under seal" and notarization 5), which, however, either have little practical importance nowadays (as in the case of the contract under seal), or are so easily satisfied that the justification for their continued existence is questionable (as in the case of notarization, which in US legal practice generally means nothing more than having a secretary certify a signature upon request). As a signature can be any mark on a message made "with the present intention to authenticate" it 6), in US law the emphasis is on whether the signer intended to be bound.7)
In the US, questions concerning the validity of handwritten signatures tend to arise most frequently in the context of the so-called "Statute of Frauds", which is a remnant of the English common law that was incorporated into the Uniform Commercial Code that almost all US states have adopted. The Statute of Frauds provides that in order to be enforceable, certain types of contracts (such as those of a value more than $500) must be "in writing and signed by the party against whom the enforcement is sought" 8). Within this context, courts have held such indications of intent as a telegraphed name 9), a fax 10), and a telex 11) to be a "writing" or "signature". The key factors in the US decisions seem to be that, if the signature reflects the intent of the party, and it was recorded in a "tangible medium" 12), then it will be found to be a legally-valid signature 13). Signature and writing requirements are also found in other specific areas where there is a particular need for evidentiary certainty, such as regarding the filing of papers in court 14).
The functions of a signature referred to above in the context of German law are by no means unknown to US law 15). However, it is also clear that the trend has largely been away from written signature requirements 16). US law emphasizes the intent of the parties, rather than the security of the manner by which the signature is affixed, as long as certain minimum requirements (such as the use of a "tangible medium", which includes electronic media) are observed. Moreover, it is widely felt that the Statute of Frauds is no longer timely and should be repealed 17).
Despite the generally liberal approach to the admissibility in court of electronic signatures, concerns about the acceptance of such evidence in practice have led almost all US jurisdictions to pass or at least seriously contemplate legislation intended to facilitate their admissibility 18). While such legislation typically deals with much more than the evidentiary status of electronic signatures, the uncertainty caused by evidentiary disputes has been one of the major motivations in enacting US digital signature laws 19).
IV. Written Signatures in the Civil Law (Germany)
The German law of written signatures is complex and cannot be discussed here in all its permutations. However, it is possible to distill some general principles. Under German law there are no formal requirements for a contract to be valid, unless explicitly provided for by law, and it is possible for the parties to agree that a signature will have a particular evidentiary value. The vast majority of commercial transactions in German law do not require a particular form of handwritten signature, but such requirements do play a role in certain areas relevant to electronic commerce (e.g., in consumer credit transactions and in data protection law) 20).
German law contains five types of signature requirements:
- those provided for by statute (gesetzliche Schriftform) 21);
- agreement by the parties to apply statutory signature requirements (gewillkürte Schriftform) 22);
- notarial 23) certification (notarielle Beurkundung); 24)
- authentication (öffentliche Beglaubigung), 25) which is generally performed by a notary; and
- recordation in a protocol of declarations concerning a court settlement (gerichtlicher Vergleich), 26) which is used in place of notarial authentication.
Where a written signature is required by statute, the document has to be signed by hand by the issuer with his name or a handwritten mark which is authenticated by a notary. 27) Signatures by stamp, 28) typewriter, 29) or by telegram 30) or fax 31) are not considered to be "handwritten" in this context. The rationale for such statutory signature requirements is related to the functions of written form described above. For example, § 566 BGB requires that a lease of real estate longer than one year has to be signed by hand to provide evidence for the content of the contract, 32) while § 766 BGB provides that a surety bond requires a handwritten signature in order to warn the surety. 33)
When no statutory signature requirements are applicable but the parties have agreed to apply them anyway, the statutory provisions concerning signature requirements are applied unless the parties have agreed otherwise. 34) Thus, in this case the parties may derogate from the requirement of a handwritten signature, so that, for example, a transmission via telegraph between the parties would be sufficient 35). In this case, the consequences of a failure to satisfy the agreed-upon formal requirements are determined by the agreement between the parties, so that whether or not the agreement is rendered void depends on the circumstances in each case. 36) By contrast, the failure to satisfy a signature requirement provided for by statute renders a transaction void in principle 37) (not just unenforceable), nor may the parties derogate from the legal rules concerning statutory form. 38) In some cases the failure to meet signature requirements may be cured, e.g., in the case of a conveyance of real estate by performance of the transfer and entry into the Land Registry (Grundbuch), 39) or by performance of a gratuitous promise, 40) or by a surety performing the obligation in question. 41) But there is no general principle that the failure to satisfy signature requirements can be cured by performance. 42)
If notarial authentication (Beglaubigung) is required by statute (e.g., of a company registration), 43) the declaration in question must be in writing and the signature or the manual sign has to be attested by a notary, 44) who authenticates only that the signature is actually that of the signatory. 45) If notarial certification (Beurkundung) is required by statute (e.g., for a gift 46) or a conveyance of real estate 47), the signatory will issue a written declaration to the notary, which will be read and approved; following this ceremony, the notary will sign the minutes. 48) Certification serves as proof that the declaration was issued in front of a notary, and replaces the legal requirement of a handwritten signature and notarial authentication. 49)
A written signature satisfying the formal rules described above enjoys enhanced evidentiary status under the Code of Civil Procedure (Zivilprozeßordnung or ZPO), so that it is presumed that the signed declaration was issued by the signatory. 50) The practical result is that parties often attempt to memorialize their understandings in a written document satisfying the formal requirements (called an Urkunde), in order to gain the benefit of these evidentiary presumptions. Because of the requirement of a handwritten signature and because of the lack of embodiment in a tangible medium, it is generally held that an electronic document cannot be an Urkunde, 51) meaning that it cannot enjoy the evidentiary presumptions described above. However, such evidence can still be admitted as "visual evidence" (Augenscheinsbeweis) or "expert evidence" (Sachverständigenbeweis), the weight of which is assessed by the court in its discretion. 52)
The capability of digital signatures to provide highly-secure evidence of integrity and authenticity has made them the center of attention in Germany to provide an electronic equivalent to written signature requirements. For instance, since 1990 it has been possible to submit an application for a default summons (Mahnbescheid) without a handwritten signature, if it is otherwise ensured that the application could not have been submitted without the intent of the applicant. 53) And in 1993 a law to expedite administrative procedures (Registerverfahrenbeschleunigungsgesetz) was amended to allow local authorities to maintain the Land, Company, and other registries in electronic form. 54)
On August 1, 1997, the German Digital Signature Law 55) (Signaturgesetz or SigG) came into force. The Law is designed to establish general conditions under which digital signatures are to be deemed secure, and sets forth a voluntary technical standard which is intended to be secure for all applications. 56) Neither the Law nor the accompanying Digital Signature Ordinance (Signaturverordnung or SigV) 57) deal with the subject of hand-written signatures, as it was considered preferable to gather experience under the Law before providing legal equivalence them and between electronic signatures. 58) The main legal innovation of the Digital Signature Law is that it provides that use of the technical standard defined by law will cause a digital signature to be "deemed secure", 59) although the exact effect of this presumption in German law is unclear. 60) There is no impediment to a court granting the same evidentiary value to other digital signature standards as to the statutory standard (for example, based on agreement by the parties); rather, the advantage at present to using the standard set forth under the Digital Signature Law is that users thereby enjoy a legal presumption without having to agree upon it in advance, which can also save costs by not requiring the court in each case to hear evidence about the security of the standard used. Additional legal advantages to using the statutory standard may arise in the future, as the government is presently examining the possibility of allowing fulfillment by electronic means of statutory signature requirements based upon use of the statutory digital signature standard.
V. Policy Implications for Electronic Authentication
The differences in written signature requirements discussed above have already found expression in national and international policies on electronic authentication. For example, the German Digital Signature Law is based on a high security standard, which is at least partially owing to the high level of security required to satisfy statutory signature requirements in German law and the intention to tie later relaxation of such requirements to the statutory digital signature standard. The connection between stringent written signature requirements and electronic signature regulation is also set forth in a German government paper on the "International Legal Recognition of Digital Signatures, which states in part: "In particular, a legal framework is necessary for the construction and erection of a (compatible) security infrastructure with a uniform organizational and technical security standard. The trustworthiness which is thereby attained offers the possibility of ... legally allowing a ‘digital form’ with digital signature as the equivalent to ‘written form’ with a hand-written signature." 61)
Another example is provided by Article 9 of the "Proposal for a European Parliament and Council Directive on Certain Legal Aspects of Electronic Commerce in the Internal Market" (the "E-Commerce Directive"), 62) which obligates the EU Member States to ensure the validity of electronic contracts in their respective legal systems, but leaves the issue of meeting formal requirements (such as those requiring signatures) by electronic means to the proposed EU Directive on Electronic Signatures. 63) However, this latter Directive does not by itself provide harmonization, since it does not apply to "non-contractual formalities requiring signatures". 64) The fact that both directives in effect leave the harmonization of written signature requirements to the Member States indicates the sensitivity and difficulty of amending long-established written signature requirements in national law.
The US position, by contrast, has been based on principles that reflect the role of signatures in US law. For example, in early 1998 the US government proposed a "Draft International Convention on Electronic Transactions" to the Working Group on Electronic Commerce of the United Nations Commission on International Trade Law (UNCITRAL). 65) The terms of the proposed convention emphasize respecting the parties' agreement concerning the type of signature used, even to the extent of overriding applicable legislation. 66) US state and federal legislation on electronic signatures also generally reflects the view under US law that electronic signatures should be considered equivalent to paper-based signatures, 67) and that such equivalence should not be based on the security of electronic signatures. 68)
These examples suggest that differences in the definition of "signature" are already influencing the course of national and international policies on electronic authentication. In particular, common law lawyers often see written signatures requirements as a formality that has been largely eliminated and remains only in a few isolated cases, while civil law lawyers often think of them in terms of security requirements that have a strong public policy aspect. Differing concepts of "signature" in the context of electronic authentication also seem influenced by the differing uses to which it is assumed this technology will be put, with US policymakers focusing on "low value" applications less concerned with identity (such as SSL certificates), while the German Digital Signature Law, by contrast, is based on a model that digital signatures will primarily be used to prove personal identity. It is therefore not surprising that policymakers from different countries often seem to have completely different concepts in mind when discussing the definition of a "signature".
There are clear dangers in dealing with a subject of such international importance in a purely national way. The international legal acceptance of authentication technologies will be impeded if each legal system clings to its own parochial conceptions of what constitutes a signature, which will also lead to increasing trade disputes and international tension. Moreover, useful regulatory activity in the area of electronic signatures (such as ensuring the removal of barriers to their legal validity) may become caught up in disagreements on the role of written signature requirements.
With all this in mind, it seems that the following considerations are of particular importance for policymakers as they grapple with regulating a technology that implicates widely-differing concepts of written signatures:
- Understanding the changing role of written signatures. It is crucial that there be a realistic assessment by policymakers of the extent to which the functions of written signatures that have traditionally been recognized in national legal systems remain relevant in the context of electronic signatures. For example, while the "warning function" of written signatures remains an important value, one could ask whether it should retain its importance in the context of electronic signatures, or whether the fact that the Internet gives users an unprecedented degree of freedom and choice in the use of technology means that this function has lost much of its justification. Likewise, it is reasonable to ask that respect for the intent of the parties be evaluated in light of the extent to which complicated modern technology gives users a meaningful opportunity to understand the risks and benefits of using a particular signature technology.
- Education of governments. Experience has shown that, despite their best efforts, many policymakers dealing with electronic authentication often have a poor understanding of the technology, with the result that regulation in this area tends to be unrealistic and to lag behind the available technology. It is thus imperative that governments and international organizations concerned with electronic authentication take the time to learn about the technology and to avoid overly-hasty regulation. Academia and the private sector can play an important role in assisting governments to better understand the technology and its economic and social implications.
- The necessity of an internationally-oriented definition of "signature". As the Internet brings national legal systems closer together, conflicts between them based on differing written signature requirements will become more and more likely. This argues for developing an internationally-harmonized definition of written signatures, which would be based on a balance between ensuring security and respecting party autonomy. One might ask whether a definition could ever be found that would satisfy both competing values; an answer might be to develop a scalable set of signature requirements based on the security needs of the particular application. For instance, the definition of "signature" could differ if a means of electronic authentication was used to establish identity, to demonstrate a particular attribute of the signatory, or for some other purpose.
A first step toward such a differentiated set of definitions can be certain international standards which have already been adopted, such as Article 7(1)(b) of the 1996 UNCITRAL Model Law on Electronic Commerce, which defines the security standard an electronic signature must meet as a method "as reliable as was appropriate for the purpose for which the data message was generated or communicated, in the light of all the circumstances, including any relevant agreement". This in effect sets forth a "reasonableness" standard for written signatures, as it is based on the particular circumstances under which the signature is created and the uses to which it is put. Development of such a standard would have to take place on two levels: first of all, by amending national written signature requirements to bring them in line with the requirements of the Internet age, and secondly, by continuing work on international agreements and policies.
Achieving increased appreciation of these factors is likely to be a long, drawn-out process, with the result that there will be tension between increasingly-sophisticated electronic signature technology and legal rules based on centuries-old concepts of handwritten signatures. At the same time, there are signs that the potential exists for national written signature requirements to grow together over time. A number of jurisdictions seem to be following the path of granting basic legal validity to all types of electronic signatures, but at the same time of granting enhanced evidentiary privileges to signatures that meet certain minimum security requirements; this is the route taken, for example, in the German Digital Signature Law, 69) the Utah Digital Signature Act, 70) the Illinois Electronic Commerce Security Act, 71) and the UNCITRAL Draft Uniform Rules on Electronic Signatures. 72) However, closer examination shows the difficulty of harmonization even among such similar approaches. For example, even though the Illinois Act and the German Law both do not deny legal validity to electronic signatures that do not meet their respective statutory criteria, the Illinois Act allows the parties to determine the security techniques meeting the statutory criteria wholly by agreement, whereas the German Law sets them forth in great detail (though the parties can still derogate from them, at least to the extent that a statutory signature requirement is not involved).
What is becoming clear is that, whereas written signature requirements were earlier regarded purely as matters of national law, the growing use of the Internet and electronic signatures is putting increasing pressure on nationally-based conceptions of written signatures, and will force regulators and courts to confront the need to develop more internationally-oriented notions of the functions of a signature in a globally-networked world.
© 1999 Christopher Kuner and Anja Miedbrodt. * firstname.lastname@example.org. ** Rechtsanwältin and Research Assistant, Law Faculty of the University of Frankfurt, email@example.com. 1) In this article, "electronic authentication" and "electronic signature" are used synonymously, with "digital signature" (using asymmetric cryptography) as a subset of "electronic signatures". "Electronic authentication" may be understood as any sort of electronic verification of information, with "electronic signature" as a form of "electronic authentication" that indicates the intention to associate oneself in a legal sense with the contents of an electronic document. 2) See, e.g., http://www.ilpf.org/digsig/survey.htm. 3)See Herda, Elektronische Dokumente - Einführung in die rechtliche Problematik, in: Bundesnotarkammer (ed.), Elektronischer Rechtsverkehr 37, 42-43 (Verlag Otto Schmidt 1995); Palandt, Bürgerliches Gesetzbuch § 125 Rdn. 1 (C.H. Beck Verlag , 57nd ed. 1998). 4) See Smedinghoff (ed.), Online Law 83 (Prentice-Hall 1996). 5) See Perritt, Law and the Information Superhighway 386 (John Wiley & Sons 1996). 6) UCC § 1-201(39). 7) See Online Law, supra note , at 84. 8) UCC § 2-201(1). 9) Hillstrom v. Gosnay, 614 P.2d 466 (Mont. 1980). 10) Bazak International Corp. V. Mast Industries Inc., 73 N.Y.2d 113, 7 U.C.C. Rep. Serv. 2d 1380 (1989). 11) Joseph Denunzio Fruit Co. V. Crane, 79 F. Supp. 117 (S.D. Cal. 1948). 12) In this context, the use of an electronic medium (such as a computer display) which the user can use and read is considered "tangible". 13) Online Law, supra note , at 84. 14) See, e.g., New York CPLR 2101(a), requiring with regard to court papers that "the writing shall be legible and in black ink". 15) See ABA Digital Signature Guidelines 3-4 (American Bar Association 1996), which refer (non-exclusively) to the following "general purposes" of a signature: evidence, ceremony, approval, and efficiency and logistics; Fuller, Consideration in Form, 41 Columbia Law Review 799, 800 (1941). 16) ABA Digital Signature Guidelines, supra note , at 5, note 10. 17) See Baum & Ford, Secure Electronic Commerce 44 (Prentice-Hall 1997). 18) See the list at http://www.perkinscoie.com/resource/ecomm/digsig/index.htm. 19) Baum & Ford, supra note , at 50 note 79. 20) There are over 3,000 written form requirements in German law. 21) § 126 Civil Code (Bürgerliches Gesetzbuch or BGB). 22) § 127 BGB. 23) In civil law systems, notaries are highly-trained legal professionals, and are not comparable to US notaries public. 24) § 128 BGB. 25) § 129 BGB. 26) § 127a BGB. 27) § 126 BGB. There is controversy as to whether the signer can be represented by an agent. 28) BGH NJW 1970, 1078, 1080. 29) Münchner Kommentar, Bürgerliches Gesetzbuch, Allgemeiner Teil § 126 Rdn. 22 (C.H. Beck Verlag 1993). 30) BGHZ 24, 297, 302. 31) Palandt, supra note , § 126 Rdn. 7. 32) Palandt, supra note , § 566 Rdn. 1. 33) BGHZ 24, 297, 301. These two particular requirements do not apply to communications between "merchants" within the meaning of the Commercial Code (Handelsgesetzbuch or HGB); see § 350 HGB. 34) § 127 sentence 1 BGB. 35) § 127 sentence 2 BGB. 36) § 125 sentence 2 BGB. 37) § 125 sentence 1 BGB. 38) BGH NJW 1969, 1167, 1170, NJW 1973, 1455, 1456, NJW 1980, 451, 451. 39) § 313 sentence 2 BGB. 40) § 518 para. 2 BGB. 41) § 766 sentence 2 BGB. 42) Brox, Allgemeiner Teil des Bürgerlichen Gesetzbuches 144, Rdn. 264 (20th ed. Carl Heymanns 1996). 43) § 12 HGB. 44) § 129 para. 1 BGB. 45) § 40 para. 1 of the Law on Certification (Beurkundungsgesetz or BeurkG)). 46) § 518 BGB. 47) § 313 BGB. 48) § 8 BeurkG. 49) § 126 para. 3, 129 para. 2 BGB. 50) §§ 440 para. 2, 416 ZPO. 51) Fritzsche & Maler, Ausgewählte zivilrechtliche Probleme elektronisch signierter Willenserklärungen, 1995 Deutsche Notar-Zeitschrift [DNotZ] 2, 19; Mellius, Zum Regelungsbedarf bei der elektronischen Willenserklärung, 1994 MDR 109, 112. 52) Roßnagel, Die Sicherheitsvermutung des Signaturgesetzes, 1998 NJW 3312, 3314; Bizer & Hammer, Elektronisch signierte Dokumente als Beweismittel, 1993 DuD 619, 622. 53) § 690 para. 3 ZPO. 54) Gesetz zur Vereinfachung und Beschleunigung registerrechtlicher und anderer Verfahren (Registerverfahrensbeschleunigungsgesetz), BGBl I, 1993, 2181-2235. 55) BGBl. I 1997, 1870, http://www.iid.de/iukdg/. 56) § 1, para. 1 SigG. 57) October 8, 1997, http://www.iid.de/iukdg/. 58) The German Federal Justice Ministry is presently examining electronic signatures and is considering amendments to existing laws to improve their legal status. 59) § 1(1) SigG. 60) See on this point Mertes, Gesetz und Verordnung zur digitalen Signatur – Bewegung auf der Datenautobahn, 1996 CR 7; Roßnagel, Die Sicherheitsvermutung des Signaturgesetzes, 1998 NJW 3312. 61) Draft of August 28, 1998, available in translation at http://www.kuner.com. 62) 18.11.1998, COM(1998) 586 final. 63) COM (1998) 586, Annex commentary to Article 9. The text of the Directive was still being negotiated at the time this article was completed in April 1999; the original proposal of May 13, 1998 is available athttp://www.ispo.cec.be/eif/policy/com98297.html. 64) Article 1. 65) Available at http://www.un.or.at/uncitral/. 66) For instance, the section entitled "Party Autonomy" states that "The terms of any agreement (including closed systems) between parties governing their transaction should be enforced without regard to any statutory framework governing electronic authentication." 67) See, e.g., Illinois Electronic Commerce Security Act, § 5-120, http://www.mbc.com/legis/ill-esca.html, which provides "Where a rule of law requires a signature, or provides for certain consequences if a document is not signed, an electronic signature satisfies that rule of law". 68) See id., Comment 3: "It is important to note that while this section provides that any signature on an electronic record can meet statutory and regulatory signing requirements, it does not address the sufficiency, reliability, or authenticity of any such signature." 69) § 1(1) SigG. 70) § 406 Utah Digital Signature Act. 71) § 10-120 Illinois Electronic Commerce and Security Act. 72) Article 3, Version of 23 November 1998, A/CN.9/WG.IV/WP.79, http://www.un.or.at/uncitral/en-index.h