CACI No. 380. Agreement Formalized by Electronic Means - Uniform Electronic Transactions Act (Civ. Code, § 1633.1 et seq.)

Judicial Council of California Civil Jury Instructions (2020 edition)

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380.Agreement Formalized by Electronic Means - Uniform
Electronic Transactions Act (Civ. Code, § 1633.1 et seq.)
[Name of plaintiff] claims that the parties entered into a valid contract in
which [some of] the required terms were supplied by [specify electronic
means, e.g., e-mail messages]. If the parties agree, they may form a
binding contract using an electronic record. An “electronic record” is
one created, generated, sent, communicated, received, or stored by
electronic means. [E.g., E-Mail] is an electronic record.
[Name of plaintiff] must prove, based on the context and surrounding
circumstances, including the conduct of the parties, that the parties
agreed to use [e.g., e-mail] to formalize their agreement.
[[Name of plaintiff] must have sent the contract documents to [name of
defendant] in an electronic record capable of retention by [name of
defendant] at the time of receipt. An electronic record is not capable of
retention by the recipient if the sender or its information processing
system limits or prohibits the ability of the recipient to print or store it.]
New December 2012; Revised December 2016
Directions for Use
This instruction is for use if the plaintiff is relying on the Uniform Electronic
Transactions Act (UETA, Civ. Code, § 1633.1 et seq.) to prove contract formation. If
there are other contested issues as to whether a contract was formed, also give
CACI No. 303, Breach of Contract - Essential Factual Elements.
The first paragraph asserts that electronic means were used to supply some or all of
the essential elements of the contract. Give the third paragraph if a law requires a
person to provide, send, or deliver information in writing to another person. (See
Civ. Code, § 1633.8(a).)
The most likely jury issue is whether the parties agreed to rely on electronic records
to finalize their agreement. Whether the parties agree to conduct a transaction by
electronic means is determined from the context and surrounding circumstances,
including the parties’ conduct. (See Civ. Code, § 1633.5(b).)
The UETA does not specify any particular transmissions that meet the definition of
“electronic record,” such as e-mail or fax. (See Civ. Code, § 1633.2(g).)
Nevertheless, there would seem to be little doubt that e-mail and fax meet the
definition. The parties will probably stipulate accordingly, or the court may find that
the particular transmission at issue meets the definition as a matter of law.
If a law requires a signature, an electronic signature satisfies the law. (Civ. Code,
§ 1633.7(d).) The UETA defines an electronic signature as an electronic sound,
symbol, or process attached to or logically associated with an electronic record and
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executed or adopted by a person with the intent to sign the electronic record. (Civ.
Code, § 1633.2(h); see Gov. Code, § 16.5(d) (digital signature).) The validity of an
electronic signature under this definition would most likely be a question of law for
the court. If there is an issue of fact with regard to the parties’ intent to use
electronic signatures, this instruction will need to be modified accordingly.
Sources and Authority
• “Electronic Record” Defined Under UETA. Civil Code section 1633.2(g).
• “Electronic Signature” Defined Under UETA. Civil Code section 1633.2(h).
• Agreement to Conduct Transaction by Electronic Means. Civil Code section
1633.5(b).
• Enforceability of Electronic Transactions. Civil Code section 1633.7.
• Providing Required Information by Electronic Means. Civil Code section
1633.8(a).
• Attributing Electronic Record or Signature to Person. Civil Code section 1633.9.
• “ ‘Whether the parties agree to conduct a transaction by electronic means is
determined from the context and surrounding circumstances, including the
parties’ conduct. . . . ‘The absence of an explicit agreement to conduct the
transaction by electronic means is not determinative; however, it is a relevant
factor to consider.” (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232
Cal.App.4th 974, 989 [182 Cal.Rptr.3d 154].)
• “Under Civil Code section 1633.7, enacted in 1999 as part of the Uniform
Electronic Transactions Act, an electronic signature has the same legal effect as a
handwritten signature.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232
Cal.App.4th 836, 843 [181 Cal.Rptr.3d 781], internal citations omitted.)
• “Civil Code section 1633.9 addresses how a proponent of an electronic signature
may authenticate the signature - that is, show the signature is, in fact, the
signature of the person the proponent claims it is.” (Ruiz, supra, 232 Cal.App.4th
at p. 843.)
• “We agree that a printed name or some other symbol might, under specific
circumstances, be a signature under UETA . . . .” (J.B.B. Investment Partners,
Ltd., supra, 232 Cal.App.4th at p. 988.)
• “The trial court’s analysis was incomplete. Attributing the name on an e-mail to
a particular person and determining that the printed name is ‘[t]he act of [this]
person’ is a necessary prerequisite but is insufficient, by itself, to establish that it
is an ‘electronic signature.’ . . . UETA defines the term ‘electronic signature.’
Subdivision (h) of section 1633.2 states that ‘ “[e]lectronic signature” means an
electronic sound, symbol, or process attached to or logically associated with an
electronic record and executed or adopted by a person with the intent to sign the
electronic record.’ (Italics added; see CACI No. 380 [party suing to enforce an
agreement formalized by electronic means must prove ‘based on the context and
surrounding circumstances, including the conduct of the parties, that the parties
CONTRACTS CACI No. 380
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agreed to use [e.g., e-mail] to formalize their agreement . . .]’ ” (J.B.B.
Investment Partners, Ltd., supra, 232 Cal.App.4th at pp. 988-989, original
italics.)
• “In the face of [plaintiff]’s failure to recall electronically signing the 2011
agreement, the fact the 2011 agreement had an electronic signature on it in the
name of [plaintiff], and a date and time stamp for the signature, was insufficient
to support a finding that the electronic signature was, in fact, ‘the act of’
[plaintiff].” (Ruiz, supra, 232 Cal.App.4th at p. 844.)
• “[W]hether [defendant]’s printed name constituted an ‘electronic signature’
within the meaning of UETA or under the law of contract, are legal
issues . . . .” (J.B.B. Investment Partners, Ltd., supra, 232 Cal.App.4th at p.
984.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts § 11
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 15, Attacking
or Defending Existence of Contract - Failure to Comply With Applicable
Formalities, 15.32
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.26
(Matthew Bender)
27 California Legal Forms: Transaction Guide, Ch. 75, Formation of Contracts and
Standard Contractual Provisions, § 75.17 (Matthew Bender)
381-399. Reserved for Future Use
CACI No. 380 CONTRACTS
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