Legal instrument
Encyclopedia
Legal instrument is a legal
term of art that is used for any formally executed written document
that can be formally attributed to its author, records and formally expresses a legally enforceable act, process, or contractual duty, obligation, or right, and therefore evidences that act, process, or agreement. Examples include a certificate, deed
, bond
, contract
, will
, legislative act
, notarial act
, court writ or process, or any law
passed by a competent legislative body in municipal (domestic) or international law
. Many legal instruments were written under seal by affixing a wax or paper seal
to the document in evidence of its legal execution and authenticity
(which often removes the need for consideration
in contract
law); however, today many jurisdictions have done away with the requirement of documents being under seal in order to give them legal effect. Others, such as Australia, have re-interpreted sealing as a formally attested signature.
. In this electronic age, document authentication
can now be verified digitally using various software. All documents needing authentication can be processed as digital documents with all the necessary information such as date and time stamp imbedded. To prevent tampering or unauthorized changes to the original document, encryption
is used. In modern times, authentication is no longer limited to the type of paper used, the specialized seal, stamps, etc., as document authentication software helps secure the original context. The use of electronic legal documents is most prominent in the United States' courts. Most United States' courts prefer the filing of electronic legal documents over paper. However, there is not yet a public law to unify the different standards of document authentication. Therefore, one must know the court's requirement before filing court papers.
To address part of this concern, the United States Congress enacted the Electronic Signatures in Global and National Commerce Act
in 2000 (P.L. 106-229 of 2000, 15 USCS sec. 7001) specifying that no court could thereafter fail to recognize a contract simply because it was digitally signed. The law is very permissive, making essentially any electronic character in a contract sufficient. It is also quite restrictive in that it does not force the recognition of some document types in electronic form, no matter what the electronic character might be. No restriction is made to signatures which are adequately cryptographically tied to both the document text (see message digest) and to a particular key whose use should be restricted to certain persons (e.g., the alleged sender). There is thus a gap between what the cryptographic engineering can provide and what the law assumes is both possible and meaningful.
Several states had already enacted laws on the subject of electronic legal documents and signatures before the U.S. Congress had acted, including Utah, Washington, and California to name only a few of the earliest. They vary considerably in intent, coverage, cryptographic understanding, and effect.
Several other nations and international bodies have also enacted statutes and regulations regarding the validity and binding nature of digital signature
s.
and with the signatures at the bottom.
To date, the variety (and inadequacy) of the definitions used for digital signatures (or electronic signatures) have produced a legal and contractual minefield for those who may be considering relying on the legality and enforceability of digitally signed contracts in any of many jurisdictions. Adequate legislation adequately informed by cryptographic engineering
technology remains an elusive goal. That it has been fully, or adequately, achieved (in any jurisdiction) is a claim which must be taken with considerable caution.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
term of art that is used for any formally executed written document
Document
The term document has multiple meanings in ordinary language and in scholarship. WordNet 3.1. lists four meanings :* document, written document, papers...
that can be formally attributed to its author, records and formally expresses a legally enforceable act, process, or contractual duty, obligation, or right, and therefore evidences that act, process, or agreement. Examples include a certificate, deed
Deed
A deed is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed...
, bond
Bond
Bond, bonds, bonded, and bonding may refer to:* Peace-bonding, something which makes a weapon unusable as a weapon- Fiduciary :* Bond , in finance, a type of debt security...
, contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
, will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
, legislative act
Legislative act
A legislative act is a formal written enactment produced by a legislature or by a legislative process. It may be contrasted with a non-legislative act which is adopted by an executive or administrative body under the authority of a legislative act or for implementing a legislative act....
, notarial act
Act (document)
An act is an instrument that records a fact or something that has been said, done, or agreed. Acts generally take the form of legal instruments of writing that have probative value and executory force...
, court writ or process, or any law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
passed by a competent legislative body in municipal (domestic) or international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
. Many legal instruments were written under seal by affixing a wax or paper seal
Seal (device)
A seal can be a figure impressed in wax, clay, or some other medium, or embossed on paper, with the purpose of authenticating a document ; but the term can also mean the device for making such impressions, being essentially a mould with the mirror image of the design carved in sunken- relief or...
to the document in evidence of its legal execution and authenticity
Authentication
Authentication is the act of confirming the truth of an attribute of a datum or entity...
(which often removes the need for consideration
Consideration
Consideration is the central concept in the common law of contracts and is required, in most cases, for a contract to be enforceable. Consideration is the price one pays for another's promise. It can take a number of forms: money, property, a promise, the doing of an act, or even refraining from...
in contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
law); however, today many jurisdictions have done away with the requirement of documents being under seal in order to give them legal effect. Others, such as Australia, have re-interpreted sealing as a formally attested signature.
Electronic legal documents
With the onset of the Internet and electronic equipments such as the personal computers and cell-phones, legal instruments or formal legal documents have undergone a progressive change of dematerialisationDematerialisation
Dematerialisation may refer to:* Demat accounts - a type of banking account which dematerialize the paper-based physical shares.* Teleportation - the movement of objects from one place to another without travelling through space....
. In this electronic age, document authentication
Authentication
Authentication is the act of confirming the truth of an attribute of a datum or entity...
can now be verified digitally using various software. All documents needing authentication can be processed as digital documents with all the necessary information such as date and time stamp imbedded. To prevent tampering or unauthorized changes to the original document, encryption
Encryption
In cryptography, encryption is the process of transforming information using an algorithm to make it unreadable to anyone except those possessing special knowledge, usually referred to as a key. The result of the process is encrypted information...
is used. In modern times, authentication is no longer limited to the type of paper used, the specialized seal, stamps, etc., as document authentication software helps secure the original context. The use of electronic legal documents is most prominent in the United States' courts. Most United States' courts prefer the filing of electronic legal documents over paper. However, there is not yet a public law to unify the different standards of document authentication. Therefore, one must know the court's requirement before filing court papers.
To address part of this concern, the United States Congress enacted the Electronic Signatures in Global and National Commerce Act
Electronic Signatures in Global and National Commerce Act
The Electronic Signatures in Global and National Commerce Act is a United States federal law passed by the U.S. Congress to facilitate the use of electronic records and electronic signatures in interstate and foreign commerce by ensuring the validity and legal effect of contracts entered into...
in 2000 (P.L. 106-229 of 2000, 15 USCS sec. 7001) specifying that no court could thereafter fail to recognize a contract simply because it was digitally signed. The law is very permissive, making essentially any electronic character in a contract sufficient. It is also quite restrictive in that it does not force the recognition of some document types in electronic form, no matter what the electronic character might be. No restriction is made to signatures which are adequately cryptographically tied to both the document text (see message digest) and to a particular key whose use should be restricted to certain persons (e.g., the alleged sender). There is thus a gap between what the cryptographic engineering can provide and what the law assumes is both possible and meaningful.
Several states had already enacted laws on the subject of electronic legal documents and signatures before the U.S. Congress had acted, including Utah, Washington, and California to name only a few of the earliest. They vary considerably in intent, coverage, cryptographic understanding, and effect.
Several other nations and international bodies have also enacted statutes and regulations regarding the validity and binding nature of digital signature
Digital signature
A digital signature or digital signature scheme is a mathematical scheme for demonstrating the authenticity of a digital message or document. A valid digital signature gives a recipient reason to believe that the message was created by a known sender, and that it was not altered in transit...
s.
and with the signatures at the bottom.
To date, the variety (and inadequacy) of the definitions used for digital signatures (or electronic signatures) have produced a legal and contractual minefield for those who may be considering relying on the legality and enforceability of digitally signed contracts in any of many jurisdictions. Adequate legislation adequately informed by cryptographic engineering
Cryptographic engineering
Cryptographic engineering is the discipline of using cryptography to solve human problems. Cryptography is typically applied when trying to ensure data confidentiality, to authenticate people or devices, or to verify data integrity in risky environments....
technology remains an elusive goal. That it has been fully, or adequately, achieved (in any jurisdiction) is a claim which must be taken with considerable caution.