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JOHAN ROODT
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JOHN COHEN
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Merely writing your name on a document could, in law, constitute your "signature".

What constitutes a "signature"? Does merely writing your name on a document constitute a "signature" that binds you in law?

What is a "signature"?

What constitutes a person's "signature"?

A moment's reflection reveals what an important question this is. After all, it is your "signature" to the documents that has bound you to pay the mortgage instalments on your house, has committed you to the repayments on your car, your credit card, etc. It is your "signature" that creates the legal obligation, and gives the bank the right to sue you if you do not pay what the document says you must.

The answer to this question proved decisive in the recent judgement of the Durban High Court in Tomasi v Bhengazi Horse Safaris CC earlier this year.

A tourist wrote his name on an indemnity form, but did not sign it.

A tourist from Italy was holidaying in South Africa. Whilst walking on the beach, he saw people enjoying organized horse-riding. He approached a lady who seemed to be in charge, and arranged with her to join in a group horse-ride the following day.

The next day, he arrived at the agreed venue. As he was preparing to mount the horse assigned to him, it suddenly lashed out with a hoof in a sideways kick that connected with his face, inflicting horrific injuries.

The tourist sued the horse-riding business for damages in respect of the medical and other expenses that he had sustained.

It transpired that, before embarking on the horse-ride, he had been presented with a form which stated that -

"Benghazi Horse Safaris are not liable for any damages, losses or injuries that may occur before, during or after a ride. Signing this indemnity form is proof that you have read the agreement and are willing to abide by the conditions within."

Under those words there were five blocks to be completed with the person's name and address and the time and date of the ride.

The tourist filled out the information required by the form. But he did not sign it. In fact, nowhere on the form was there a space that called for his signature.

Had the tourist "signed" the form?

It was common cause that if the tourist had indeed "signed" this form, then the indemnity would be operative, and would constitute an agreement that he would have no claim against the company for the injury he had sustained, irrespective of whether that company's employees had been negligent.

But had he "signed" the form? All he had done was to fill in his name and address.

The court ruled that the information requested on the form that the tourist had filled out was simply to establish his contact details and the particular ride that he was going to go on.

The court said that, on the evidence laid before it and on the basis of the testimony given by witnesses, the tourist, by merely writing his name and address on the form, had not intended to "authenticate" the contents of the form and that it did not constitute a valid and binding contract.

It is important to note that the judgement does not say that merely writing your name on a document will never constitute a "signature" that binds you to its contents.

It is clear from the judgement that it is, in every case, a question of intention - when you "made your mark" on the document, whether by simply writing your name or by signing it, did you intend to signify your assent to a legally binding document? If the answer is affirmative, then you are legally bound by the document.

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