Legal Talk – “Sign here, here and here” Signatures and their consequences

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 him/herself and the signatory must have intended to sign the relevant document.
  • A signature has more than one purpose and can act as a form of identification of the signatory and confirmation of the contents of a document. It also acts as a form of verification that whatever document is signed, is indeed true, real and valid.
  • 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 his/her intention be bound by the contract.
  • When signing a receipt after making a card payment at a store, the signature acts as identification of the signatory, an acknowledgment that the amount is correct and confirms 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 acts as proof that the parcel was delivered, received and can identify who received the parcel.

What if someone cannot sign a document him/herself?

  • If a person cannot sign a document (either due to being illiterate or due to a physical condition that prevents him/her from writing), s/he 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, the 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 used where one of the parties later on claim that s/he 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 these 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 s/he 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 s/he is signing and s/he will still be liable under the terms and conditions of that contract even if s/he did not read it.
  • Contracts are sometimes written in such difficult terms that it may become impossible for everyone to understand them. This may lead people into entering contracts without understanding them and being bound by the contents.
  • The Consumer Protection Act 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 s/he understands the terms and conditions before signing it.
  • There might be some exceptions to this general rule of being held liable without reading a document, for example, where a person was forced and threatened to sign a contract.
  • Another example of where a contract was signed, but the signatory was not held liable is where the text of a contract was so small that it is impossible to decipher, not even with a magnifying glass. These are facts that were dealt with by the High Court recently 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 technology developing, it is not always possible to use a physical signature. The law had to develop to allow 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 his/her signature.
  • An electronic signature has the same function and purpose as a physical signature. For example, someone clicking that s/he acknowledges the terms and conditions of an electronic purchase without reading it, will still be bound by that terms and conditions.
  • There are certain contracts 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).

What to do if a signature is disputed?

  • It is possible that a person may allege that the signature on a document is not his/hers or that his/her 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 his/her signature being forged, s/he 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 read the document in order to fully understand what s/he is signing. Do not just sign something or take someone else’s word for what the contents 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 in the document, make sure that the changes are made before signing it.
  • Read the document again after any changes are made. It cannot be emphasised enough how important it is to read a document before signing it.