Statute of Frauds: (1) Email as “Writing” and (2) Email Signature as “Signature”

Arizona, like most states, has a Statute of Frauds that essentially requires real estate related contracts to be both (1) in writing and (2) signed by the party to be charged.  A.R.S. § 44-101.  Questions often arise as to whether an email can satisfy the “writing” requirement, and whether an electronic signature can satisfy the “signed by the party to be charged” requirement.  The answer to these questions, like many legal questions, is: it depends.  Whether an email can satisfy the “writing” requirement might depend on whether the transaction relates to interstate commerce.  Pursuant to federal statute, 15 U.S.C. § 7001, an email will satisfy the writing requirement in many cases; but the federal statute would only apply if the transaction related to interstate commerce.  Arizona has a similar statute, A.R.S. §§ 44-7005 and 44-7007, but the Arizona statute allows an email to satisfy the writing requirement “only to transactions between parties each of which has agreed to conduct transactions by electronic means.”  There is no such requirement in the federal statute that the parties agree to conduct the transaction by electronic means.  Under the Arizona statute, “[w]hether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties’ conduct.”

Similarly, both the federal statute and the Arizona statute allow an electronic signature to satisfy the signature requirement (assuming, of course, the other statutory requirements are met).  But again, under the Arizona statute, the parties must have agreed to conduct the transaction by electronic means.