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Legal Aspects

The ITA states that a contract cannot be denied legal enforceability merely because it was conducted electronically provided the contract fulfils the essential elements of a valid contract under the ICA.

In the context of the requirements of ICA, in particular, Section 10 of the ICA that sets for the essential elements that constitute a legal electronic signature in India. A valid contract under ICA must:

1. Have been entered into by parties who are competent to contract,
2. Have been entered into by parties as a result of their free will,
3. Provide for mutual consideration between the parties,
4. Not require doing anything forbidden by law.

It is important to note that a contract between private parties under Indian law does not require a signature for validity – only the requirements above. Further, generally commercial agreements can be executed using an electronic signature except for a few exceptions such as promissory notes, powers of attorney, trust deeds, wills, and contracts for the sale of immovable property.

In summary, contracts under Indian law, while they do not require a signature to be valid, may benefit by having a legal electronic signature applied that meets some or all of what is described as making an electronic signature more “reliable” as further described by the ITA. An electronic signature is generally considered “reliable” under ITA if it includes the following; including some but not all of the following may contribute to the evidentiary weight of the electronic signature.

1. The signature creation data or the authentication are linked to or were under the control of at the time of signing, the signatory or to the authenticator and not to another person,
2. Any alteration to the electronic signature made after affixing such signature is detectable,
3. Any alteration to the information made after its authentication by electronic signature is detectable,
4. There is an audit trail of the steps taken during the signature process, and
5. The digital signer certificates are issued by a recognized certifying authority.

RPost electronic signature services satisfy the above using technical measures including among other measures, controlling the data presented to signers as a third party, receiving the signer indications of electronic signature by a signer that has authenticated with at least an email system and optionally additional identity authentication systems or multi-factor authentication systems, applying the electronic signature indications to the RPost controlled content, managing the processes and interactions by all parties on or related to the controlled content including applying the electronic signatures, time stamping with a uniform time source, each activity related to the contract creation and signing process, and over-signing the contract content, timestamps, applied electronic signatures, identity information and audit trail using a digital signature issued by a recognizable certificate authority with that digital signature configured for Long Term Validation and issued to the third party, RPost. These interactions are enabled with NIST FIPS-140-2 certified encryption modules as noted on RPost.com.

These technical measures contribute to RPost electronic signatures being high evidential weighted non-ITA electronic signatures, which, if the validity of the signature is challenged, the party seeking to enforce the signature may need to produce evidence to show the essentials of a valid contract, is per ICA (noted above) the elements required to be an ICA valid contract were satisfied. By contrast, ITA electronic signatures (requiring additional non-default RPost capabilities of KYC or applying individually issued digital signature certificates) shift the burden to the challenging party (the party challenging the electronic signature validity) to prove invalidity.

In summary, the RPost electronic signature services provide electronic signatures of high evidential weight and may be relied upon for adding affirmation of agreement to a contract to strengthen the evidence that a contract has been entered into by parties as a result of their free will and is a valid electronic contract as per ICA.