e-conveyancing

[Nicholas Bohm]

At 07:38 29/03/2001 +0100, David Swarbrick wrote:
>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?

Not at all.  When you have time you will see that the LCD paper presents
itself as offering a short-term stopgap until true electronic conveyancing
can be created, which will need primary legislation which is well into the
design stage.  That will probably involve authorised persons being able to
effect direct changes to entries in central registers, dispensing with
virtual paper.

The problems are twofold:

1  The stopgap is based on wishful thinking (and some material
misunderstanding) about PKI and the availability of support for digital
signatures and certification, and is driven more by the Government's desire
to create demand for the PKI vendors, and to be seen to be doing something
modern, than by any sensible grasp of what would be any use on the ground.

2  The scheme involves significant shifting of risk from the Land Registry
to the conveyancers, but wholly fails to make this clear (I doubt if the
LCD, or the DTI enthusiasts behind it, really appreciate this).  This is a
problem which will probably get even worse in the Mark 2 scheme, so it's
valuable to have a chance to expose it now.

Regards

Nicholas

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