The signature requirements pertain the legal or contractual requirements in order to make a legally effective declaration of intent or a legally binding contract.
Possibility to replace a specific formal requirement of making a binding declaration of intention
Most contracts can be executed electronically if the contract provides for execution in that manner, the parties agree to the document being signed electronically and electronic execution is not prohibited for that type of agreement by law. However, where something needs to be executed by a company as a deed, then the formalities for execution by deed currently require signatures and witnessing in the written form. There is currently no electronic means for the affixing of corporate seals in Ireland so company seals are required to be physically affixed to deeds, which should be countersigned in wet ink.
The Companies (Miscellaneous) (Covid-19) Act 2020 temporarily allows documents required to be executed by companies under seal to have the company seal and all required signatures appearing on separate documents and for these separate documents to be construed as one single document. These provisions remain in force until end of December 2022.
Presence of any specific formal requirements to effectively conclude a loan agreement
The manner of execution of a loan agreement will depend on the particular transaction, where a deed requires to be executed under seal by a company, any instrument to which a company’s seal shall be affixed shall be signed by both a director of the company and countersigned by the company secretary / second director of the company.
Process of conclusion of a contract by using a qualified electronic signature in practice
QES is recognised in Ireland under EU Regulation No. 910/2014 (eIDAS Regulation). The eIDAS Regulation provides that e-signatures should not be denied legal effect on the basis that it is in electronic form. It provides for simple e-signatures, advanced e-signatures, and qualified e-signatures.
A contract using a qualified e-signature is concluded where the contract contains an indication that the signature of the person or public body is an AES, the signature of the person purporting to witness the signature to be witnessed is an AES signature and is based on a qualified certificate also.
The “relevant vendor” who is licensed to issue qualified and advanced e-signatures is referred to as a Qualified Trust Service Provider under the Act. To be a qualified trust service provider, the entity must receive qualified status from its member nation’s supervisory body that authorises that entity to provide qualified trust services to be used in creating qualified e-signatures.
DocuSign is one of the listed Trust Service Providers in Ireland.
Sections 64 and 65 of the Land and Conveyancing Law Reform Act 2009 are of importance as they outline the formalities which must be observed in relation to the execution of all deeds.
Legal consequences to a contract in case of not fulfilling formal requirements
Where a contract is required to be effected under seal, the instrument to which a company’s seal shall be affixed must be signed by both a director of the company and countersigned by the company secretary / second director of the company. Certain contracts must be executed as a deed, for example contracts related to real property and where there is no consideration. If a deed is not executed correctly, it may be ineffective and in the case of real property may not be accepted for registration purposes.
Usual practice of signing contractual agreements in the B2B sector
There is growing use of e-signatures in Ireland particularly within the tech sector in Ireland. There are, however, still requirements for certain deeds to be executed under ‘wet ink’, in particular deeds related to real property and documents required to be executed by Companies under seal.
Usual practice of signing contractual agreements in the B2C sector
The B2C sector in Ireland follows the same signing arrangements as the B2B sector. Where a company is entering a B2C contract, any one director shall have the power to bind the company and sign contracts on behalf of the company, assuming that the director has been given the authority to do so.
The same limitations apply to a director’s authority to bind the company to certain contracts.