Question:
Ken:
we are running into a situation regarding signed contracts. Many of my salesman send an electronic file to the customer, requested that three copies be printed out and signed.
1) the customer keeps, 2) second is faxed to our office and 3) The original signed coped to be mailed to our office. The customer does steps 1 and 2 but rarely #3. Do we need to be aggressive and obtain the signed originally when we have a signed faxed copy?
Please advise .
thanks
EDWARD CASSIDY
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Answer:
First let me preface this answer by letting you know I am not taking into consideration any local consumer law requirement that you actually have an original on file in your office. I am not aware of any such requirement, but they may exist. We electronic contracts becoming more prevalent it is unlikely that you can be expected to have an actual original, meaning one with the subscriber's original signature.
In your fact pattern and stated practice of conducting your business there is an actual original contract. If you aren't getting it back from the subscriber then we can assume that the subscriber is retaining the original. There is nothing wrong with that, provided you have an exact copy of the original. A faxed copy of a contract is admissible in court if you can testify that the copy is identical with the original and you can explain the absence of the original. In your method of doing business you can do that with your faxed copy which you get from the subscriber. Keep in mind that if your contract requires your signature then you will have to be sure that you sign the contract before you send it to the subscriber. That why when the subscriber faxes the contract back your signature will be on the faxed copy.
I don't necessarily think your method of getting these contracts signed is the best one and perhaps you should give it a little more thought. One alternative would be to go completely electronic, getting your contracts "signed" on line. Just a thought, try attaching the original to a self addressed stamped envelop with instructions to sign and mail it to you. Make sure you sign the contract in advance or send back a fully executed copy.