Can You Really Sign Things in a Legally Binding Way By Just Writing a Big X?

Orlando D. asks: Does it matter what you sign on contracts? Could you draw a picture or put an X and have it still be legally binding?

signingWith so many facets of modern life being automated, signatures being easy to forge, and given how difficult it is to prove based on signature alone whether a given person actually signed something, using a person’s exact signature “design” for verification purposes after the fact is rapidly going the way of the Dodo. This leads us to the question of the day- given all this, is there any rule about what exactly your signature has to look like? Can you, for example, just sign all your legal documents with a big X like they do in cartoons?

As it turns out, just like it’s possible to cash those big novelty checks because there’s no rule about what a check has to look like or be made of (just what information needs to be included), you can, in many regions of the world, sign a document in any way you wish. This is because a signature from a legal standpoint is just proof that you considered and accepted something. Or to quote the U.S.’ Uniform Commercial Code  §3-401(b):

A signature may be made (i) manually or by means of a device or machine, and (ii) by the use of any name, including a trade or assumed name, or by a word, mark, or symbol executed or adopted by a person with present intention to authenticate a writing.

In other words, even if you sign a document in the U.S. and many other parts of the world with an ultra-detailed drawing of an anatomically correct phallus, you’re still legally bound by the terms of that document because it’s the act of signing a document that matters, not the signature itself.

This is why it’s possible to sign documents using a stamp, pencil, printed signature, digitally online or even simply by typing your name at the end of an email message in which you discuss and state you agree to some deal.

In fact, there has been a long precedent of such electronic remote agreements going all the way back to the telegraph, such as an 1869 case Howley v. Whipple in which a U.S. court determined that agreeing to terms in a telegram was indeed legally binding, with the court stating in part:

When a contract is made by telegraph… if the parties authorize their agents… to make a proposition on one side, and the other party accepts it through the telegraph, that constitutes a contract in writing under the statue of frauds…  it makes no difference whether [the telegraph] operator writes with a steel pen an inch long attached to an ordinary penholder, or whether his pen be a copper wire a thousand miles long. Nor does it make any difference that in one case common record ink is used, while in the other case a more subtle fluid, known as electricity, performs the same office.

Granted, exact rules vary a little from region to region and some specific institutions might have internal rules regarding what is an acceptable signature and what implement must be used (such as some perhaps requiring something be signed in blue pen or the like).  But except in very specific cases, in many regions of the world the law of the land does not (usually) care in the slightest about those types of internal rules. From a legal standpoint, having your signature be a stamp replica of your dog’s paw print is a perfectly acceptable way to acknowledge you agree to the terms of a contract. Again, the point is just to signify you agree to the terms.

That said, because of how lax the laws are with respect to what a signature must look like (and how difficult it is to determine if something was signed fraudulently even when a typical signature is used), certain contract types require things like witnesses or sometimes even a notary public to attest that they observed you signing a document in order for the statute to be considered legally valid. For instance, this is generally the case with wills or marriage contracts. (It’s also noteworthy that usually the witnesses observing the signing of a will also must not be individuals who are to be bequeathed something in the will.)

Coming back to the issue of signing something just using the letter X, you may have deduced by now that this is very much something you can usually do outside of specific cases where a given institution may not accept such. However, most will accept an X owing to the fact that this has long been a common way for illiterate individuals to sign a document. Other methods sometimes used by those who can’t write and haven’t otherwise come up with a scribble signature also include things like a simple drawing or in some countries a thumbprint is common. On this latter thumbprint “signature” style, while still not bulletproof, this certainly beats name signatures for later verification purposes, even for the literate.

Now, with regards to individuals who are illiterate or otherwise can’t read the language used in a contract, you may be wondering if they can really be legally bound by a document that they can’t even read even if they do sign it. It turns out, yes- from a legal standpoint it is the duty of the signing party to discern the terms of a contract before signing. Ignorance about some stipulation in a contract is not a legal way to get out of it, unless it can be shown that the other party was deliberately deceptive about the terms of the contract or that the contract itself was fundamentally different than what was expected. However, this latter point (known as non est factum) is often an incredibly hard thing to prove and, again, ignorance of the contents of the text of a contract is not a valid way to get the contract voided.

(As you might imagine, this area of contract law is not without controversy given an illiterate person may not wish to reveal this fact to anyone for various reasons including embarrassment, fear of this fact being exploited, and in some cases fear a deal will fall through if their illiteracy was known.)

In any event, beyond the aforementioned misrepresentation rules, other potential ways a signed contract may be considered invalid in the eyes of the law include things like if it was signed under coercion, if it was voided before the end of a grace period after signing (for certain types of contracts), if a person is a minor, or if the person is deemed mentally impaired in some significant way. And, note, being intoxicated or under the influence of some voluntarily taken substance does not usually count for getting out of a contract unless it’s provable that the other party used said fact to intentionally exploit the inebriated individual.

So if pretty much anyone can legally sign a contract in most any way they please outside of some specific exceptions, just how ridiculous can your signature get before someone would notice? Well, luckily this question was partially answered by comedian John Hargrave who enjoys signing checks and receipts as everyone from Zeus to Mariah Carey without having anyone question it.

He even for a time attempted to look as shady as possible in his purchases, including going on a massive shopping spree, buying a quarter ton of chemical fertilizer (the stuff you can use to make a bomb), and signing his receipts with the word “Stolen”. In the end, neither his credit card company nor the cashiers noticed.

This is for somewhat good reason. For a variety of reasons we’ll get into in another article later this week, a signature is an extremely poor data point to use to determine if a given purchase is fraudulent.

So while credit card companies do record and otherwise store these signatures electronically, there’s generally little point in anyone bothering to actually look at them. As Mastercard executive Carolyn Balfany notes, “accessing them is not a regular occurrence” unless the customer claims they didn’t sign for or buy something. But even then, again, the signature is often only a minor data point used to try to determine if a given purchase was actually fraudulent.

This laissez-faire attitude these companies take towards signatures today is a far cry from several decades ago when they generally hired huge teams of people to pore over the signatures, comparing them to the signed cards on file to ensure something like a check wasn’t fraudulent before approving the ultimate transfer of money. But in modern times, this security measure (and in a lot of respects a physical signature alone, even when talking more broadly about contracts in general) is simply completely outdated in its effectiveness to achieve the job it’s intended to do- offer proof you agreed to something. In the case of credit cards, even if cashiers bothered to check signatures at all, which most don’t, the signature does not provide any real hurdle to credit card thieves. (Again, we’ll have more on this in an upcoming article later this week on why credit card companies still make you sign the back of a credit card for said card to be considered valid, despite this being nearly worthless as a security measure.)

But to conclude, while certainly a given institution may have internal requirements with regards to your signature before they’ll accept some bit of paperwork or the like as valid, if you’ve ever had the bright idea to sign a different name or draw a smiling rocket powered unicorn with machine guns for teeth as your signature on a legally binding document to try to get out of the thing later, don’t expect this to help you in any legal way. At the end of the day, it’s the act of signing, not the physical scribbles you make, that matters from a legal standpoint.

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