eSignature Legality Guide

Under the 1995 Act, a document written on paper, parchment, or another physical medium is considered ‘probative’ (presumed to be signed by the grantor) if it is signed by a witness to the grantor’s signature.

Although not legally required, it is common practice in Scotland to have contracts and other documents witnessed to ensure they are probative.

The rules in the 1995 Act regarding probativity through witnessing apply only to documents on a tangible medium. Witnessed electronic signatures do not receive self-proving status under the Act.

For an electronic document to be probative under the 1995 Act and the 2014 Regulations, it must be authenticated with a QES[2].

The Books of Council & Session serve as a register for preserving documents and deeds, as well as for diligence purposes. Most documents submitted for registration in this register are short-term leases or powers of attorney.

According to the 2014 Regulations, for an electronic document to be registered in the Books of Council and Session, the Land Register, or recorded in the Register of Sasines, it must be presumed self-proving—meaning it must be authenticated with a QES.

Typical scenarios where an SES is suitable include:

• various HR documents, such as employment contracts, NDAs, employee invention agreements, privacy notices, benefits forms, and other onboarding paperwork;
• business agreements between companies, including NDAs, purchase orders, order acknowledgements, invoices, procurement documents, sales agreements, distribution agreements, service agreements, and software license agreements;
• consumer contracts, such as documents for opening new retail accounts, sales terms, service terms, software licenses, purchase orders, order confirmations, invoices, user manuals, and policies (excluding consumer loan agreements); and
• residential and commercial lease agreements, except where the parties intend to register the lease.

Certain scenarios are specifically excluded from digital or electronic processes, or require handwritten (wet ink) signatures or formal notarization, making them generally incompatible with electronic signatures or digital transaction management:

• Formal Documents, such as contracts for transferring land, which must be authenticated with an AES to be valid, or a QES if registration is needed;
• the execution of any will, testamentary trust disposition and settlement, or codicil, as these cannot currently be signed electronically;
• documents intended to be probative, which require a QES;
• standard securities—a fixed charge over property in Scotland—which must be registered in the Land Register and, if granted by a company or LLP, also at Companies House. Since only electronic documents authenticated with a QES issued by Registers of Scotland under the ARTL System are accepted for registration, it is not currently possible to sign such charges electronically using an SES;
• documents for Revenue Scotland where Land and Buildings Transaction Tax (LBTT) is due, which must be submitted in paper form;
• certain documents, such as company accounts to be filed with Companies House outside its web-filing service, which must be submitted on paper;
• assignments of patents or patent applications, which must be on paper or parchment and signed at the end of the last page;
• documents intended for registration in the Books of Council and Session, the Land Register, or the Register of Sasines, which must be authenticated with a QES; and
• contracts governed by Scots law that may be enforced in jurisdictions that do not recognize electronic signatures.

Scotland recognizes several types of electronic signatures, as outlined in Regulation (EU) No 910/2014 of the European Parliament and Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market (the “eIDAS Regulation”), including QES.

When an electronic document is authenticated with a QES (regardless of the technology used), it is given ‘probative’ status under Scots law. This means the document is presumed validly executed and does not require further evidence to prove its validity in court. If someone challenges its validity, they must provide evidence that the document’s appearance was misleading and it was not properly executed. Non-QES electronic signatures can still be presented as evidence in Scottish courts, but if their validity is disputed, the presenting party must provide enough evidence to prove their authenticity.

[1] An AES, or “advanced electronic signature,” is a type of electronic signature that: (a) is uniquely linked to the signatory; (b) can identify the signatory; (c) is created using means under the signatory’s sole control; and (d) is linked to the signed data so that any changes can be detected.

[2] A QES is a specific type of digital signature that meets government standards, uses a secure signature creation device, and is certified as ‘qualified’ by the government or an authorized party.