“Sign here, here and here”

Signatures and its consequences

Everyone uses their signature on a regular basis, whether to sign an important contract or a receipt after buying something and paying with a card. Putting a signature on a document has a purpose and can bind a person to whatever is contained in that document. It is quite common for people to sign something without even reading it or knowing what they have signed. This article will shed some light on the legal consequences of signatures, as well as the different forms it might come in. 

What is the purpose of a signature?

• A signature refers to a stylistic representation of a person’s name, surname and/or initials that is applied to a document, such as a contract. A signature must be placed by the signatory themself and the signatory must have intended to sign the relevant document.
• A signature has more than one purpose and can serve as a form of identification of the signatory and confirmation of the contents of a document.
• Depending on the document that is signed, the signature might have different meanings. When signing a contract, the signature generally indicates the identity of the signatory, the signatory’s agreement to the terms and conditions of the contract, and their  intention to be bound by the contract.
• When signing a receipt after making a card payment at a store, the signature serves as identification of the signatory, an acknowledgment that the amount is correct and that the store was allowed to take that amount from the card.
• Another common example of when a signature is used is when someone signs for a parcel. In this instance, the signature serves as proof that the parcel was delivered and received, as well as identification of who received the parcel.

What if someone cannot sign a document themself?

• If a person cannot sign a document (either due to being illiterate or due to a physical condition that prevents them from writing), they may sign the document by making a mark (such as an ‘X’) or using a thumbprint. It might be necessary to make the mark or thumbprint in the presence of a commissioner of oaths or a notary.
• It is also possible for a representative to sign a document on behalf of someone else, however, such representative must be authorised to do so by a written and signed resolution or power of attorney. 

What does it mean to sign as a witness?

• Contracts generally set out a space for witnesses to sign together with the parties to the contract.
• The purpose of a witness is to verify the signature of a person who is a party to a contract. This means that the main function of a witness is to confirm that it is indeed the signature of the party to the contract. The witness does not have to know what the contents of the contract are.
• Witnesses to a contract are usually called upon where one of the parties later on say that they did not sign the contract. Witnesses can then be called in to give evidence on whether it was indeed signed by that person or not. For this purposes, the party to the contract must sign in the presence of the witness and enough details of the witness must be captured to ensure that they can be reached at a later stage if necessary.

What if someone signs a contract without reading it?

• Under South African law, a person who signs a contract will be bound by its contents. It is expected of a person to know the contents of a contract they sign and that they will still be liable under the terms and conditions of that contract even if they did not read it.  
• Contracts are sometimes written in such difficult terms that it is impossible for everyone to understand it. This led to people entering into contracts without understanding it and being bound by its contents.
• The Consumer Protection Act assists with this and provides that consumer agreements must be in a plain and understandable language. However, there is still a duty on the signatory of a contract to make sure that they understand the terms and conditions before signing it.
• There are some exceptions to this general rule of being held liable without reading or understanding a document, for example, where a person was forced and threatened to sign a contract.
• Another example of where a signatory may escape liability despite having signed a contract is where the text of a contract is so small that it is impossible to decipher, not even with a magnifying glass. This is a set of facts that the High Court had to deal with and it was held that, even though the contract was signed, the signatory cannot be held liable under the contract due to text being so small that it cannot be said to be in a plain and understandable language. 

Are electronic signatures valid?

• With new technology developing, it is not always possible to use a physical signature and the law developed to such an extent to allow for signatures in an electronic format.
• There are different types of general electronic signatures, such as the signature used at the bottom of an e-mail, the “click to accept” function on a website, a username and password combination, a digitised signature (handwritten signature that is put in an electronic form) and so on.
• Any of these types of electronic signatures can be used as long as the intention of the person making use of same is that it should be considered as their signature.
• An electronic signature has the same function and purpose as a physical signature. For example, someone clicking that they acknowledge the terms and conditions of an electronic purchase without reading it, will still be bound by those terms and conditions.
• There are certain contracts or legal documents where a general electronic signature will not be considered as a valid signature and where it must still be in a physical form and signed by hand, for example, a contract for the sale of immovable property (like a house) and when signing a Will. 

What to do if a signature is disputed?

• It is possible that a person may allege that the signature on a document is not theirs or that their signature was forged.
• In such instances a handwriting expert can be approached to investigate the matter. If the signature is on a contract with witnesses, the witnesses can be called to give evidence.
• If a signature was forged, criminal charges can be made against the person who forged the signature. If someone suffered financial damages due to their signature being forged, they may also claim those damages from the person who forged the signature. 

What must a person do before signing a document? 

• The first thing a person must do is to read the document in order to fully understand what it is they are signing. Do not just sign something or take someone else’s word for what the contents of the document are.
• If there is anything that is unclear, ask for clarity or obtain legal advice before signing.
• Ensure that all blank spaces in the document are completed or scratched out and sign next to it.
• If there is anything that has to be changed to the document, make sure that the changes are made before signing it.
• Read the document again after any changes were made to it. It cannot be emphasised enough how important it is to read a document before signing it.