e-conveyancing

[David Swarbrick]

This consultation may be just for the private grief of lawyer members of
this list, but ...

The more I think about it, the more I worry

It seems to me that the consultation and ECA2000 seem to see the move from
paper docs to electronic docs and signatures as a mere alteration of the way
the document is held, plus some nuisance making complications with regard to
signatures.

I wonder if they should be thinking more fundamentally.

Surely when we move away from a paper transfer we move away also from the
idea that there is one entity which represents an original e-document (it
just happens to be the electronic equivalent of a paper document. They talk
as if all that is happened is that the paper has been 'taken out' of the
document, leaving an electronic ghost.

An agreement is an mental entity, a meeting of minds. Documents are only
required to operate as evidence of what has taken place. The two, the legal
act and the document, go so closely together that it becomes easy to confuse
the document with what it represents.

Surely we should move rather to the idea that we look only for a legal act
(an agreement or promise) or consent to a legal act, and for evidence as to
the precise terms of that act.
That need is satisfied electronically by evidence in the form of any one or
more collections of characters which go together to make up a picture
(usually text) of the terms of the legal act, the e-document) linked
inextricably to a combination of characters capable of being linked back to
the person making the act, a signature.

It no longer makes any sense to talk as if there is an original document,
and continued attempts, a la 144A, to do so will at best miss an
opportunity, and at worst create confusion, and unnecessary complication and
possibly danger.

Another way of putting is that instead of talking of the dematerialisation
of documents, we should be talking of the non-materialisation of evidence of
agreements.

Am I dreaming?


--
David Swarbrick, Solicitor
david.swarbrick@wrigleyclaydon.com www.swarb.co.uk Tel 0161 785 3527 Mob
0779 681 0373