Practitioners will note the addition of new General Condition 48 in the recently launched General Conditions of Sale 2023 Edition.

General Condition 48 is being introduced in recognition of the general move to digitisation and the ever increasing use of electronic signatures.  Whilst electronic signatures are not currently capable of being used for deeds or declarations, they may be used, where desired, in the execution and exchange of a Contract for Sale.  The Electronic Commerce Act 2000 provides the statutory basis for the legal recognition of e-signatures in Ireland.

General Condition 48 creates an express confirmation and consent by the parties to electronic exchange of contracts, the use of counterparts and the potential to use electronic signatures or even a mix of electronic signatures and wet ink signatures.

This change does not in any way alter the current position in relation to the formalities for execution and exchange of a simple contract for the sale and purchase of land and the parties are free to elect to use electronic signatures as appropriate in keeping with legislative requirements.

The wording of General Condition 48 incorporates the suggested wording referenced at Clause 14 of the "Updated Guidance Note Regarding E-Signatures, Electronic Contracts and Certain Other Electronic Transactions" issued by the Law Society of Ireland and is available through the link referred to at Appendix 3 to the Explanatory Memorandum issued with the release of the General Conditions of Sale 2023 Edition.

Practitioners should be careful when making use of electronic signatures and make themselves familiar with the legal position as set out in the "Updated Guidance Note Regarding E-Signatures, Electronic Contracts and Certain Other Electronic Transactions" referred to above.  In particular, practitioners will need to be aware that as it currently stands, all that is necessary to execute a contract for the sale of land is a "simple electronic signature", which is described as "data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign".  Put simply, an electronic signature could be as simple as typing a name as a signature (or other mark) on the page and there is no specific requirement for any witness to the signature.

As is the case with any of the General Conditions, the general condition can be deleted or amended by special condition.  For example, if it is not intended to have the option of using e-signatures for execution, General Condition 48 might be amended by way of a special condition requiring the use of "wet ink" signatures duly witnessed.  There is of course a risk that by being too specific as to requirements, through simple oversight or inadvertence a formal requirement for execution and exchange may be overlooked and call into question the binding nature of the contract.  Primarily for this reason General Condition 48 has been drafted to reflect the default position which is quite familiar to many practitioners.

If desired, General Condition 48 could be amended by Special Condition to provide for the use of an "advanced electronic signature" (which is more secure than a "simple electronic signature") or even a "qualified electronic signature", which is currently the most secure form of electronic signature.

Execution of documents by electronic signature is becoming ever more common place including for purchases by auction and generally for contracts for residential and commercial real estate transactions as well as short term lettings.

• View Guidance on the Electronic Commerce Act 2000 and the use of e-signatures