In order to sign any document, whether in a physical or digital form, the concept of identity is indispensable. The very act of signing signifies that an identifiable entity stands behind the action, either as an individual or organisation, and that this entity takes responsibility for the content to which the signature is appended. Without identity, a signature loses its legal standing because it cannot be attributed to any particular individual or party. This principle holds whether the signature is pseudonymous, anonymous, or linked to a known, legally recognised name. It is important to explore how this applies in both traditional and digital contexts, particularly under UK law, which governs the validity of signatures and the attribution of identity.

The Necessity of Identity in Signing

At the heart of any legal signature is the need for an identifiable signatory. In the simplest terms, a signature is an assertion that the individual who has signed agrees to be bound by the terms and conditions set out in the relevant document. This is reflected in English contract law, where the signatory’s identity must be ascertainable for the contract to be valid. A signature, therefore, cannot exist independently of an identity. Even in cases where someone signs under a pseudonym or assumed name, the pseudonym itself is treated as a form of identity. For example, in Chitty on Contracts, it is acknowledged that a signature does not need to be the person’s actual name so long as it serves to identify the person. This is critical, as pseudonyms are regularly used in various legal and commercial contexts, yet these pseudonyms provide an identifiable link to the individual behind the act.

In Shogun Finance Ltd v Hudson [2004] 1 AC 919, the House of Lords examined the issue of identity in the context of a hire-purchase agreement, where fraudulent identity led to a dispute over contractual liability. In this case, the importance of correctly identifying the signatory was key, as the contract hinged on the real identity of the person. The court ruled that a contract based on fraudulent misrepresentation of identity was void, reinforcing the principle that the true identity of the signatory is central to the validity of a contract.

Pseudonymous Signatures

Pseudonymous signatures further complicate the issue of identity. In such instances, the signatory is signing under a name that does not directly correspond to their legal name. However, UK law has long recognised that a pseudonym can be a valid form of identity, provided that the pseudonym is sufficiently connected to the person. In digital contexts, the pseudonym becomes tied to cryptographic proof, which confirms the authenticity of the signatory’s identity behind the pseudonym. A key example can be found in the application of public key infrastructure (PKI), a cryptographic framework used to manage digital signatures.

Under the PKI system, a digital signature relies on a pair of cryptographic keys: one private and one public. The private key is known only to the signatory, while the public key can be distributed widely. When a document is signed digitally, the private key encrypts the signature, and anyone with the corresponding public key can verify that the signature matches the document. While this system allows for the use of pseudonyms—where the public key may be associated with a pseudonymous identity—the identity of the signatory remains verifiable through the cryptographic keys. Thus, even pseudonymous signatures carry identity, albeit in a more abstracted form.

In the case of pseudonymous signatures, the pseudonym functions as a distinct identity within the digital environment. As long as the pseudonym is consistently linked to the same cryptographic keys, it can act as a valid form of identity under UK law, specifically under the Electronic Communications Act 2000 and eIDAS (Electronic Identification and Trust Services for Electronic Transactions Regulations) 2016. The eIDAS regulation, in particular, sets out the requirements for electronic signatures across the European Union and remains applicable in the UK post-Brexit. Under eIDAS, advanced electronic signatures (AES) must be uniquely linked to the signatory, with a process that can identify the individual or pseudonym behind the signature. The signature must also be capable of detecting changes to the signed data, ensuring the integrity of the document.

Anonymous Signatures

By contrast, anonymous signatures do not carry any identifiable link to the signer, making them legally ineffective. In both the digital and physical contexts, an anonymous signature cannot legally bind anyone to the content of the document because there is no identifiable entity behind the signature. The law requires that identity, in some form, be present for the act of signing to carry any legal weight. Without this identifiable link, the signature becomes meaningless from a legal standpoint.

In digital contexts, anonymity cannot offer the same level of accountability as pseudonymity. While a pseudonymous digital signature can be traced back to a specific entity through cryptographic means, an anonymous signature lacks this traceability. In the UK, for a digital signature to be valid under the Electronic Communications Act 2000, it must be attributable to a person or organisation, even if the identity is obfuscated through the use of pseudonyms. Without this attribution, a signature, whether physical or digital, fails to meet the necessary legal requirements.

Identity and Digital Signature Law in the UK

The Electronic Communications Act 2000 and eIDAS form the backbone of digital signature law in the UK. These legal frameworks define what constitutes a valid electronic signature and outline the requirements for digital signatures to be recognised as legally binding. In particular, eIDAS provides that a qualified electronic signature must be based on a qualified certificate issued by a trusted service provider. This certificate verifies the identity of the signatory, either directly or pseudonymously, ensuring that the signature can be traced back to a verifiable identity.

Corporations can sign as can pseuodnyms

The UK courts have consistently upheld the principle that identity is essential in the validity of signatures, including digital signatures. In Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd & Anor [2012] EWCA Civ 265, the Court of Appeal considered the validity of electronic communications and whether an email signature could satisfy the formalities of the Statute of Frauds. The Court ruled that an email with a name typed at the end constituted a signature, highlighting that even digital signatures must be linked to an identifiable person or entity to be valid. While this case did not involve pseudonymous or anonymous signatures, it reinforces the broader principle that identity remains a core requirement for any form of signature.

Similarly, in J Pereira Fernandes SA v Mehta [2006] EWHC 813 (Ch), the court found that the inclusion of an email address as a signature could be valid under certain circumstances, further establishing the connection between identity and the validity of digital signatures in UK law.

Legal Implications of Identity in Digital Transactions

The necessity of identity in signing is especially relevant in digital transactions, where the use of pseudonyms and cryptographic keys is common. In digital environments, a pseudonym can serve as a valid form of identity, as long as it can be consistently tied to the signatory. The pseudonym, when backed by cryptographic proof, offers sufficient identity to make a digital signature legally binding. However, anonymous signatures, which cannot be attributed to any entity, do not meet the legal requirements and are therefore invalid.

UK law requires that any form of electronic signature, whether pseudonymous or otherwise, must be capable of identifying the signatory. This is codified in eIDAS, which ensures that the identity of the signatory is a fundamental component of the signature’s validity. The use of cryptographic keys provides the technical means by which identity is assured, allowing pseudonyms to function as valid forms of identity within the legal framework. However, without any form of identity, whether real or pseudonymous, the signature cannot carry legal force.

As such, the concept of identity is integral to the act of signing, both in the physical and digital realms. Whether the identity is direct, pseudonymous, or cryptographically linked, it is necessary for the signature to be legally valid. The requirement of identity is enshrined in UK law, particularly through the Electronic Communications Act 2000 and eIDAS, which provide the legal basis for digital signatures and ensure that all signatures can be attributed to an identifiable person or entity. While pseudonyms can offer a layer of anonymity, they still function as a form of identity in legal terms. An anonymous signature, by contrast, fails to meet the legal threshold and is invalid. Thus, identity, in some form, is always required for the act of signing to have any legal significance.

Appendix – Past Notes:

It should be noted that Justice Mellor saw no relationship between the concepts in any of these works as related to bitcoin in any way. That is despite being one of the foundational legal cases concerning identity, signatures and some of the core foundational concepts of bitcoin. I wrote these papers in 2005 when I started analysing until concepts of electronic commerce law, digital signature law, identity law and trade and finance law in my international finance law degree.

A Review of Shogun v Hudson [2003] UKHL 62

Shogun v Hudsonis a classic case of both fraud and mistaken identity. The outcomes of this decision hold particular importance to consumer credit and hire purchase transactions. Further, this decision supports the basic fundamental principles of contract law founded on offer and acceptance. It must however be noted that the decision of the majority in the House of Lords has done little to suppress the ongoing debate as to the issue of identity mistake in contract.

Part One – A REVIEW OF SHOGUN V HUDSON [2003] UKHL 62

Shogun v Hudson[1] is a classic case of both fraud and mistaken identity. The outcomes of this decision hold particular importance to consumer credit and hire purchase transactions. Further, this decision supports the basic fundamental principles of contract law founded on offer and acceptance. It must however be noted that the decision of the majority in the House of Lords has done little to suppress the ongoing debate as to the issue of identity mistake in contract.

The majority of cases dealing with the issues of mistaken identity and fraud entail similar facts. In each, a “rogue” misrepresents his/her identity to the other contracting party. This misrepresentation is in general, designed to induce the rogue’s victim to part with property or another item of value. The rogue subsequently sells the property to an innocent third party for consideration. Often the victim accepts a worthless cheque or promise of future payment.

The original owner of the property is generally unable to trace the rogue and thus seeks to recover the goods from the third party who has received the property. This leaves the courts in the position of having to decide as to which of the two innocent parties will retain the goods. The unenviable task is complicated because one of the innocent parties must bear a loss. This decision has traditionally depended on whether the initial owner of the property can use the mistake to void the contract or if the contract is merely voidable.

If the mistake is such that the contract is void ab initio, then no contract exists between the rogue and the original owner of the property. In this case, the rogue will be unable to pass good title to the property due to the principle of nemo dat quad non habit[2].

In the case that the court holds the original contract to be voidable and not void, the third party may be able to perfect title to the goods. The result comes from an exception to the nemo datprinciple[3]. This exception develops when a buyer in good faith without notice has purchased goods that are subject to a valid hire purchase agreement; good title passes to the purchaser of the property.

There has been little consistency from the courts in deciding which of the innocent parties should prevail. In deciding the true owner of the property, the court needs to consider the precise nature of the seller’s mistake and the process used by the rogue to misappropriate the property. Case law surrounding these issues arguably remains in a “sorry condition”[4] and involves “illogical and sometimes barely perceptible distinctions… representing an unarticulated judicial policy on the incidence of loss between two innocent parties”[5].

Shogun Finance Ltd v. Hudson (“Shogun Finance”)[6] provided the opportunity for the House of Lords to clean up the conflicting areas of mistake in contract law. The House of Lords has however decided to leave the issue for Parliament to decide.

A summary of the facts from the case

The facts of this case began when the rogue articulated a wish to procure a Mitsubishi Shogun motor vehicle to the car dealer. The rogue misrepresented himself to be Mr Durlabh Patel[7]. In order to perpetrate the fraud he gave the dealer Mr Patel’s address and a stolen driving licence belonging to one Mr Patel of the afore mentioned address. The dealer accepted this as substantiation of the rouge’s identity, which was mistakenly deemed that of Mr Patel.

The parties, the rogue and the dealer agreed to a charge for the purchase of the vehicle. Subsequent to this, the dealer faxed a draft hire purchase agreement and a copy of the falsely used driving licence to Shogun Finance Ltd. The rogue, using a forged signature similar to that on Mr Patel’s driving licence, had signed the written hire purchase agreement. This agreement named Mr Patel as the contracting party.

Shogun Finance Ltd ran a credit check against the information provided by the dealer stated as originating from Mr Patel. They accepted the agreement based on the return of a good credit report. Shogun finance as the owner of the property agreed to hire the vehicle under the terms of the agreement with the false “Mr Patel”. Subsequent to this, the dealer gave possession of the vehicle to the rogue. The rogue then sold the car to one Mr Norman Hudson, a purchaser in good faith and without knowledge for £17,000 “in circumstances which do not emerge fully from the judgement”[8].

When Shogun Finance Ltd eventually discovered the fraud, they initiated an action against the defendant, Mr Hudson for damages resulting from the tort of conversion. The defendant counterclaimed that he had good title over the property through an exception to the nemo dat principle introduced by section 27 of the Hire Purchase Act 1964. This exception provided that the defendant would have acquired good title in the property where a valid contract for the hire of the vehicle and subsequent bailment by the rouge had concluded.

At first instance, the court found that Shogun Finance Ltd had expressed a clear intention to contract with Mr Patel and no other person. They claimed that the identity of the contracting party was a fundamental term of contract. This point, if upheld in appeal, would deny Mr Hudson the availability of the s27[9] exception.

As Mr Patel had never agreed to the contract due to the fraudulent use of his name, he could validly claim a defence of non est factum[10]. Accordingly, the court at first instance held that the agreement was void ab initio and no contract had ever existed.

Court of Appeal

Opposing Lord Justice Sedley’s judgment, the majority of the Court of Appeal rejected the defendants argument that the contract was concluded inter praesentes between the rogue and the car dealer. The defendant relied on an argument that the dealer was in effect acting as an agent[11] for Shogun Finance Ltd. Lord Justice Sedley stated that, the law permitting, there were strong policy reasons why Shogun Finance Ltd should bear the loss. Shogun’s position and thus ability to discover a fraud and subsequently avoid a loss was far greater than that of the defendant. It would for instance have been easy for them to send a document through the post in order to verify that the real Mr Patel had indeed been the party that was trying to contract with them.

Dismissing the appeal from Mr Hudson, Lord Justice Dyson (Lord Justice Brooks in agreement) stated that the case hinged on whether the rogue was a debtor under a hire purchase agreement within the meaning of the Hire Purchase Act 1964[12]. If so, he could pass good title to a third party under s27. He rejected Lord Justice Sedley’s argument that where a party Contracts inter praesentes there is a refutable belief that the party intends to deal with the person standing in front of them, even if they fraudulently misrepresent themselves as another person. He also rejected the argument that the dealer was acting as an agent for Shogun stating that: “it is unhelpful and potentially misleading to say that the dealer in the present case was the agent of the finance company”[13].

Lord Justice Sedley stated that he “would dismiss this appeal on the short ground that the rogue was not the hirer named in the written hire purchase agreement, and was therefore not the debtor under that agreement. In the event, section 27(1) of the 1964 Act cannot avail the defendant”[14]. He did not leave his argument at this point, but rather went on to “consider whether the agreement was void for mistake or merely voidable for fraudulent misrepresentation without regard to the fact that the agreement was wholly in writing”[15] using the decision of Lord Justice Pearce in Ingram v. Little[16] as guidance[17].

House of Lords

The House of Lords dismissed the appeal (3:2; Lord Nicholls and Lord Millett dissenting). The Lords determined that although a written agreement concluded between Shogun Finance Ltd and the real Mr Patel, this was void and thus a nullity as Mr Patel did not provide any authority for it. Thus, no contract between the rogue and the Shogun existed. The result of this being that the defendant gained no protection from the s27 exemptions to the nemo dat principle.

Much controversy surrounds this case[18]. Much of this controversy stems directly from the reasoning given in the speeches of Lords Millett and Nicholas. Their grounds for dissenting with the majority being based on separate fundamental rules of law.

Lord Hobhouse (in the majority) believed that the issue was limited solely to the construction of the written agreement between Shogun and the rogue purporting to be Mr Patel. An attempt to adduce evidence failed as the parole evidence[19]rule precludes the admission of evidence that contradicts the written contract. Being that the agreement was an offer by Mr Patel followed by acceptance from Shogun, only Shogun and Mr Patel could be parties to the agreement[20]. A direct consequence of his reasoning was that oral evidence was not admissible to contradict the terms of the written agreement. Therefore, the defendant was not able to demonstrate that the rogue was a party to the contract through inter praesentes transactions with the car dealer. Thus, there could be no contract with the rogue and the defendants defence should fail.

He noted that consumer credit transactions such as leasing and hire purchase fundamentally based on the identity of the customer and their credit rating. The wording of Shogun’s agreement was such that the client made an offer, which Shogun could accept or reject. Thus, Shogun would need to accept the final proposal rather than the client making the acceptance.

Lord Hobhouse stated that the defendant’s arguments were “mistaken”[21] in that they did not address the nemo dat rule but rather focused on sorting out issues with the Sale of Goods Act[22]. Another issue was the lack of regard as to the fact that the transaction was a consumer credit arrangement for the bailment of property. Further, the defendant failed to consider the parole evidence rule when developing his case. Lord Hobhouse believed that this had to fail as it could deprive written contracts of certainty[23].

Lords Phillips and Walker (in the majority) formed the view that offer and acceptance were objectively determined in accordance with the findings of Lord Hobhouse. Lord Phillips was of the opinion that the law was clear and the difficulty lay in the assessment of facts[24].

The Lords affirmed the presumption that in inter praesentes dealings; the intention is to deal with the person physically present. This however leads the question as to what constitute a contract formed inter praesentes. Lord Walker further considered that this might include dealings over a telephone or other similar technology[25]. It may follow from this reasoning, that Ingram v Little[26] is incorrectly decided.

However, the Lords noted that this presumption could not apply to contracts negotiated in writing. This would include contracts that concluded through the post, e-mail, or faxes. The parole evidence rule would mean that the issue of offer and acceptance be argued exclusively on the written documents. The issue concerning the position when the offeror does not exist remained unaddressed[27]. Both Lords Phillips and Walker rejected Lord Sedley’s opinion. Neither believed that the car dealer acted as an agent for Shogun Finance Ltd, their opinion deriving from the express naming of the parties in the written document[28].

The majority has expressed a clear policy designed in their speeches. It is clear that the majority considered that consumer credit companies needed protection from fraud more than consumers did. The primacy of the written agreement and support for the existing distinction in law between postal contracts[29](or those concluded inter absentes) versus face to face dealings[30] (concluded inter praesentes) has been supported by the decision in the House of Lords.

The minority call for reform

Lords Nicholas and Millett dissented by focusing on the arbitrary nature of the law. It would seem that they were attempting to clean up the “sorry condition”[31], into which the law had been forced. The decision of the Lords reinforces the existing anomalies in the law.

Both Lords Nicholas and Millett sought to replace the decision of Cundy v Lindsaywith a more general principle. The suggested principle that “[a] person is presumed to intend to contract with the person with whom he is actually dealing”[32]creates its own issues. For instance, the arbitrary definition of “dealing” may have numerous contexts. This view reflects Lord Denning’s[33]stated approach that all mistakes as to identity should render the contract voidable in all cases rendering the loss be apportioned to the vendor rather than the “innocent” third party.

The majority judgments draw attention to the complexity imposed by reliance on the name provided in a written document. As a result, the approach used by the majority of the Lords may not be as clear as they have asserted.

Lord Nicholls[34]stated that given an option to choose between two innocent parties, “the loss is more appropriately borne by the person who takes the risks inherent in parting with his goods without receiving payment”[35]. Lord Millett likewise suggested, “it is surely fairer that the party who was actually swindled and who had an opportunity to uncover the fraud should bear the loss rather than a party who entered the picture only after the swindle had been carried out”[36].

Lord Millett demonstrates the difficulty imposed in this type of case by noting, “[g]enerations of law students have struggled with this problem” and how “[t]hey may be forgiven for thinking that it is contrived by their tutors to test their mettle”[37]. The issue however derives from the conflicting ideologies that have created the common law of contract[38].

Lord Phillips said that he was strongly attracted to such a solution[39], but he also found it impossible to reconcile it with the basic principles of law. Such a solution focused on deducing intention from words and conduct which was simply not suitable where negotiations are entirely in writing.

Lords Nicholls and Millett apparently desired to reform the law[40]. To this end, they proposed that where two individuals “deal” with each other, by whatever means, and complete the requirements to form a contract, a contract results. They believe that this is independent as to any deception from one party to the other as to identity. Thus, they believe that all contracts in this instance should be voidable at the instance of the deceived party, not void ab initio.

Defining Mistake

Shogun v Hudsondemonstrates that English law does recognise the doctrine of contractual mistake. However, the scope of contractual mistake is extremely narrow. The English doctrine of mistake may render a contract void where both parties are the agreement had contracted based on a shared mistake. One of the requirements for this doctrine hold true is that neither party is at fault[41].

The House of Lords in Shogun did not clarify the position of contractual mistake in situations that extend beyond common mistake[42]. Such situations include negotiations involving a single mistaken party. Whilst there exist numerous cases where the court has granted relief[43] to one party in such circumstances, it remains unclear as to whether relief was as a result of the court applying a unified doctrine of mistake or whether (as would seem more likely) it is a result of the application of other contractual principles.

The majority in Shogun have convincingly argued that problems involving unilateral mistake have a resolution in the application of the founding principles of English contract law. Thus, offer, acceptance and the parole evidence rule remain of fundamental importance in contracting. Professor Treitel terms this as “offer and acceptance theory”[44].

Lord Walker in Shogun summed this up as follows:

“The other general point is that (in agreement, I think, with all your Lordships) I regard the issue in this appeal as essentially a problem about offer and acceptance; and in determining whether or not a contract has been formed by offer and acceptance, the court adopts an objective approach, and does not inquire into what either party actually intended, but the effect, objectively assessed of what they said or wrote.”[45]

Mistake as to Identity

Before Shogun Finance, case law divided issues of mistake into two distinct perspectives. Negotiations conducted inter praesentes provided a separate result to those negotiations, which concluded, inter absentes. The source of this division in the law came from the House of Lords’ decision in Cundy v Lindsay[46]. This case hinged on a rogue, Blenkarn who placed an order in writing for a number of handkerchiefs in such a way that is a written order appeared to come from Blenkiron & Co. (a respected firm). Blenkarn sold the goods to a bona fide purchaser without knowledge: Cundy. Lindsay, the original owner of the goods, failed to trace Blenkarn to recover the goods. As a result, Lindsay initiated an action against Cundy for a claim of conversion.

This case revolved upon the issue as to whether the claimant and original owner of the property had retained the requisite title to the property. If Lindsay had not retained title to the property, then the action was unsustainable.

The House of Lords held that the claimant had retained title as no valid contract concluded with the rogue. Lord Cairns concluded that, as the party to the contract was Blenkiron and not Blenkarn due to the principles in English contract law, which preclude producing evidence in contradiction to a written contract. Further ratification of this decision occurred in Philips v Brooks Ltd[47]. In this case, the rogue procured jewellery using a fraudulent cheque where he purported to be Sir George Bullough.

In face-to-face dealings, their Lordships noted that there was a rebuttable presumption that contracts concluded between the parties that dealt with each other. In such cases, the contract was voidable not void. The distinctions between contractual negotiations conducted face-to-face versus those concluded through correspondence has led to much confusion. Further, the distinct rulings on these various cases, which have highlighted the disparities between dealings concluded inter praesentes against inter absentes have created the current debates. The decision of the House of Lords not to use this opportunity to reform the law will ensure that the debate continues.

Conclusion

This case concerned the construction of a written contract. A result of this decision is the demonstration that the fundamental foundations of written contract law in the United Kingdomremain strong. These are, offer, acceptance, mutual agreement, the parole evidence rule and the nemo dat rule. The cases concerning the use of contracts for the sale of goods, made inter praesentes, remain to be of no assistance in deciding issues resulting from dealings concluded inter absentes.

It was widely hoped that the House of Lords would use this opportunity provided by the case to elucidate a complex area of law by deciding for the defendant and constructing unambiguous guiding principles to conduct similar future cases. However, the decision of the Lords reflects the differing attitudes and beliefs of the courts that had gone before. Lord Phillip’s attraction to the minority views while dismissing the appeal highlights the divisions.

Credit corporations (and to be sure others who provide documented consumer credit services) will of course receive the decision with open arms. As a consequence of the escalating frequency of purchaser and identity fraud, (likely exacerbated by new technologies such as the Internet and ecommerce), this judgment provides considerable reassurance for those who conclude contracts inter absentes or using a written process to contract.

In distinction, the innocent third party[48]purchaser remains unprotected. There persists a significant scope for differences of opinion to arise in situations where contracts are formed inter absentes against those formed inter praesentes. This also highlights the prudence of ensuring that contracts always conclude in writing.

The solution proposed by Lords Nichols and Millett in these situations is likely to prove more attractive to the general populous and mandates through code in other jurisdictions[49]. However, the House of Lords have left any decision to reform the law to parliament.

Bibliography

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2. Beatson, J. (2002) “Anson’s Law of Contract”. 28th Edition, Oxford: Oxford University Press, UK

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4. Brown, I. and A. (2005) “Chandler Blackstone’s Q&A Law of Contract”. 5th Edition, Oxford: Oxford University Press, UK

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Cases

1. Bank of Australasia v Palmer [1897] AC 540, per Lord Morris at p.545
2. Bell v Lever Bros [1932] AC 161
3. Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552, 573
4. Brogden v Metropolitan Rlwy (1877) 2 App Cas 666
5. City & Westminster Pties (1934) Ltd v Mudd [1959] Ch 129
6. Cundy v Lindsay (1878) 3 App Cas 459
7. Fawcett v Star Car Sales Ltd [1960] NZLR 406 at 413
8. Hartog v Collins & Shields [1939] 3 All ER 566

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