UNIFORM ELECTRONIC TRANS BILL
Senate Bill No. 443
(By Senators Minard, Redd, Anderson, Bowman, Dawson, Unger and
[Introduced February 10, 2000; referred to the Committee on
Interstate Cooperation; and then to the Committee on the
A BILL to amend the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto a new
chapter, designated chapter thirty-nine-a, relating to the
uniform electronic transactions act.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended by adding thereto a new chapter,
designated chapter thirty-nine-a, to read as follows:
ARTICLE 1. NONGOVERNMENTAL ELECTRONIC RECORDS AND SIGNATURES.
§39A-1-101. Short title.
This chapter may be cited as the Uniform Electronic Transactions Act.
In this chapter:
(1) "Agreement" means the bargain of the parties in fact, as
found in their language or inferred from other circumstances and
from rules, regulations and procedures given the effect of
agreements under laws otherwise applicable to a particular
(2) "Automated transaction" means a transaction conducted or
performed, in whole or in part, by electronic means or electronic
records, in which the acts or records of one or both parties are
not reviewed by an individual in the ordinary course in forming a
contract, performing under an existing contract, or fulfilling an
obligation required by the transaction.
(3) "Computer program" means a set of statements or
instructions to be used directly or indirectly in an information
processing system in order to bring about a certain result.
(4) "Contract" means the total legal obligation resulting from
the parties' agreement as affected by this chapter and other
(5) "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.
(6) "Electronic agent" means a computer program or an
electronic or other automated means used independently to initiate
an action or respond to electronic records or performances in whole
or in part, without review or action by an individual.
(7) "Electronic record" means a record created, generated,
sent, communicated, received or stored by electronic means.
(8) "Electronic signature" means an electronic sound, symbol
or process attached to or logically associated with a record and
executed or adopted by a person with the intent to sign the record.
(9) "Governmental agency" means an executive, legislative, or
judicial agency, department, board, commission, authority,
institution, or instrumentality of the federal government or of a
state or of a county, municipality or other political subdivision
of a state.
(10) "Information" means data, text, images, sounds, codes,
computer programs, software, databases or the like.
(11) "Information processing system" means an electronic
system for creating, generating, sending, receiving, storing,
displaying or processing information.
(12) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company,
association, joint venture, governmental agency, public
corporation, or any other legal or commercial entity.
(13) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.
(14) "Security procedure" means a procedure employed for the
purpose of verifying that an electronic signature, record or
performance is that of a specific person or for detecting changes
or errors in the information in an electronic record. The term
includes a procedure that requires the use of algorithms or other
codes, identifying words or numbers, encryption, or callback or
other acknowledgment procedures.
(15) "State" means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands or any
territory or insular possession subject to the jurisdiction of the
United States. The term includes an Indian tribe or band or Alaskan
native village, which is recognized by federal law or formally
acknowledged by a state.
(16) "Transaction" means an action or set of actions occurring
between two or more persons relating to the conduct of business,
commercial or governmental affairs.
(a) Except as otherwise provided in subsection (b), this
chapter applies to electronic records and electronic signatures
relating to a transaction.
(b) This chapter does not apply to a transaction to the extent
it is governed by:
(1) A law governing the creation and execution of wills,
codicils or testamentary trusts; and
(2) The Uniform Commercial Code other than sections 1-107 and
1-206, article two, and article two-a.
(c) This chapter applies to an electronic record or electronic
signature otherwise excluded from the application of this chapter
under subsection (b) to the extent it is governed by a law other
than those specified in subsection (b).
(d) A transaction subject to this chapter is also subject to
other applicable substantive law.
§39A-1-4. Prospective application.
This chapter applies to any electronic record or electronic
signature created, generated, sent, communicated, received or
stored on or after the effective date of this chapter.
§39A-1-5. Use of electronic records and electronic signatures;
variation by agreement.
(a) This chapter does not require a record or signature to be
created, generated, sent, communicated, received, stored or
otherwise processed or used by electronic means or in electronic
(b) This chapter applies only to transactions between parties
each of which has agreed to conduct transactions by electronic
means. Whether the parties agree to conduct a transaction by
electronic means is determined from the context and surrounding
circumstances, including the parties' conduct.
(c) A party that agrees to conduct a transaction by electronic
means may refuse to conduct other transactions by electronic means.
The right granted by this subsection may not be waived by
(d) Except as otherwise provided in this chapter, the effect
of any of its provisions may be varied by agreement. The presence
in certain provisions of this chapter of the words "unless
otherwise agreed", or words of similar import, does not imply that
the effect of other provisions may not be varied by agreement.
(e) Whether an electronic record or electronic signature has
legal consequences is determined by this chapter and other applicable law.
§39A-1-6. Construction and application.
This chapter must be construed and applied:
(1) To facilitate electronic transactions consistent with
other applicable law;
(2) To be consistent with reasonable practices concerning
electronic transactions and with the continued expansion of those
(3) To effectuate its general purpose to make uniform the law
with respect to the subject of this chapter among states enacting
§39A-1-7. Legal recognition of electronic records, electronic
signatures and electronic contracts.
(a) A record or signature may not be denied legal effect or
enforceability solely because it is in electronic form.
(b) A contract may not be denied legal effect or
enforceability solely because an electronic record was used in its
(c) If a law requires a record to be in writing, an electronic
record satisfies the law.
(d) If a law requires a signature, an electronic signature
satisfies the law.
§39A-1-8. Provision of information in writing; presentation of
(a) If parties have agreed to conduct a transaction by
electronic means and a law requires a person to provide, send, or
deliver information in writing to another person, the requirement
is satisfied if the information is provided, sent or delivered, as
the case may be, in an electronic record capable of retention by
the recipient at the time of receipt. An electronic record is not
capable of retention by the recipient if the sender or its
information processing system inhibits the ability of the recipient
to print or store the electronic record.
(b) If a law other than this chapter requires a record: (i)
To be posted or displayed in a certain manner; (ii) to be sent,
communicated or transmitted by a specified method; or (iii) to
contain information that is formatted in a certain manner, the
following rules apply:
(1) The record must be posted or displayed in the manner
specified in the other law.
(2) Except as otherwise provided in subsection (d)(2), the
record must be sent, communicated, or transmitted by the method
specified in the other law.
(3) The record must contain the information formatted in the
manner specified in the other law.
(c) If a sender inhibits the ability of a recipient to store
or print an electronic record, the electronic record is not
enforceable against the recipient.
(d) The requirements of this section may not be varied by
(1) To the extent a law other than this chapter requires
information to be provided, sent or delivered in writing but
permits that requirement to be varied by agreement, the requirement
under subsection (a) that the information be in the form of an
electronic record capable of retention may also be varied by
(2) A requirement under a law other than this chapter to send,
communicate or transmit a record by, may be varied by agreement to
the extent permitted by the other law.
§39A-1-9. Attribution and effect of electronic record and
(a) An electronic record or electronic signature is
attributable to a person if it was the act of the person. The act
of the person may be shown in any manner, including a showing of
the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was
(b) The effect of an electronic record or electronic signature
attributed to a person under subsection (a) is determined from the
context and surrounding circumstances at the time of its creation,
execution, or adoption, including the parties' agreement, if any,
and otherwise as provided by law.
§39A-1-10. Effect of change or error.
If a change or error in an electronic record occurs in a
transmission between parties to a transaction, the following rules
(1) If the parties have agreed to use a security procedure to
detect changes or errors and one party has conformed to the
procedure, but the other party has not, and the nonconforming party
would have detected the change or error had that party also
conformed, the conforming party may avoid the effect of the changed
or erroneous electronic record.
(2) In an automated transaction involving an individual, the
individual may avoid the effect of an electronic record that
resulted from an error made by the individual in dealing with the
electronic agent of another person if the electronic agent did not
provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the
(A) Promptly notifies the other person of the error and that
the individual did not intend to be bound by the electronic record
received by the other person;
(B) Takes reasonable steps, including steps that conform to
the other person's reasonable instructions, to return to the other
person or, if instructed by the other person, to destroy the
consideration received, if any, as a result of the erroneous
electronic record; and
(C) Has not used or received any benefit or value from the
consideration, if any, received from the other person.
(3) If neither paragraph (1) nor paragraph (2) applies, the
change or error has the effect provided by other law, including the
law of mistake, and the parties' contract, if any.
(4) Paragraphs (2) and (3) may not be varied by agreement.
§39A-1-11. Notarization and acknowledgment.
If a law requires a signature or record to be notarized,
acknowledged, verified, or made under oath, the requirement is
satisfied if the electronic signature of the person authorized to
perform those acts, together with all other information required to
be included by other applicable law, is attached to or logically associated with the signature or record.
§39A-1-12. Retention of electronic records; originals.
(a) If a law requires that a record be retained, the
requirement is satisfied by retaining an electronic record of
the information in the record which:
(1) Accurately reflects the information set forth in the
record after it was first generated in its final form as an
electronic record or otherwise; and
(2) Remains accessible for later reference.
(b) A requirement to retain a record in accordance with
subsection (a) does not apply to any information the sole purpose
of which is to enable the record to be sent, communicated or
(c) A person may satisfy subsection (a) by using the services
of another person if the requirements of that subsection are
(d) If a law requires a record to be presented or retained in
its original form, or provides consequences if the record is not
presented or retained in its original form, that law is satisfied
by an electronic record retained in accordance with subsection (a).
(e) If a law requires retention of a check, that requirement
is satisfied by retention of an electronic record of the information on the front and back of the check in accordance with
(f) A record retained as an electronic record in accordance
with subsection (a) satisfies a law requiring a person to retain a
record for evidentiary, audit, or like purposes, unless a law
enacted after the effective date of this chapter specifically
prohibits the use of an electronic record for the specified
(g) This section does not preclude a governmental agency of
this state from specifying additional requirements for the
retention of a record subject to the agency's jurisdiction.
§39A-1-13. Admissibility in evidence.
In a proceeding, evidence of a record or signature may not be
excluded solely because it is in electronic form.
§39A-1-14. Automated transaction.
In an automated transaction, the following rules apply:
(1) A contract may be formed by the interaction of electronic
agents of the parties, even if no individual was aware of or
reviewed the electronic agents' actions or the resulting terms and
(2) A contract may be formed by the interaction of an
electronic agent and an individual, acting on the individual's own behalf or for another person, including by an interaction in which
the individual performs actions that the individual is free to
refuse to perform and which the individual knows or has reason to
know will cause the electronic agent to complete the transaction or
(3) The terms of the contract are determined by the
substantive law applicable to it.
§39A-1-15. Time and place of sending and receipt.
(a) Unless otherwise agreed between the sender and the
recipient, an electronic record is sent when it:
(1) Is addressed properly or otherwise directed properly to an
information processing system that the recipient has designated or
uses for the purpose of receiving electronic records or information
of the type sent and from which the recipient is able to retrieve
the electronic record;
(2) Is in a form capable of being processed by that system;
(3) Enters an information processing system outside the
control of the sender or of a person that sent the electronic
record on behalf of the sender or enters a region of the
information processing system designated or used by the recipient
which is under the control of the recipient.
(b) Unless otherwise agreed between a sender and the
recipient, an electronic record is received when:
(1) It enters an information processing system that the
recipient has designated or uses for the purpose of receiving
electronic records or information of the type sent and from which
the recipient is able to retrieve the electronic record; and
(2) It is in a form capable of being processed by that system.
(c) Subsection (b) applies even if the place the information
processing system is located is different from the place the
electronic record is deemed to be received under subsection (d).
(d) Unless otherwise expressly provided in the electronic
record or agreed between the sender and the recipient, an
electronic record is deemed to be sent from the sender's place of
business and to be received at the recipient's place of business.
For purposes of this subsection, the following rules apply:
(1) If the sender or recipient has more than one place of
business, the place of business of that person is the place having
the closest relationship to the underlying transaction.
(2) If the sender or the recipient does not have a place of
business, the place of business is the sender's or recipient's
residence, as the case may be.
(e) An electronic record is received under subsection (b) even
if no individual is aware of its receipt.
(f) Receipt of an electronic acknowledgment from an
information processing system described in subsection (b)
establishes that a record was received but, by itself, does not
establish that the content sent corresponds to the content
(g) If a person is aware that an electronic record purportedly
sent under subsection (a), or purportedly received under subsection
(b), was not actually sent or received, the legal effect of the
sending or receipt is determined by other applicable law. Except
to the extent permitted by the other law, the requirements of this
subsection may not be varied by agreement.
§39A-1-16. Transferable records.
(a) In this section, "transferable record" means an electronic
(1) Would be a note under article three of the Uniform
Commercial Code or a document under article seven of the Uniform
Commercial Code if the electronic record were in writing; and
(2) The issuer of the electronic record expressly has agreed
is a transferable record.
(b) A person has control of a transferable record if a system employed for evidencing the transfer of interests in the
transferable record reliably establishes that person as the person
to which the transferable record was issued or transferred.
(c) A system satisfies subsection (b), and a person is deemed
to have control of a transferable record, if the transferable
record is created, stored, and assigned in such a manner that:
(1) A single authoritative copy of the transferable record
exists which is unique, identifiable, and, except as otherwise
provided in paragraphs (4), (5) and (6), unalterable;
(2) The authoritative copy identifies the person asserting
(A) The person to which the transferable record was issued; or
(B) If the authoritative copy indicates that the transferable
record has been transferred, the person to which the transferable
record was most recently transferred;
(3) The authoritative copy is communicated to and maintained
by the person asserting control or its designated custodian;
(4) Copies or revisions that add or change an identified
assignee of the authoritative copy can be made only with the
consent of the person asserting control;
(5) Each copy of the authoritative copy and any copy of a copy
is readily identifiable as a copy that is not the authoritative copy; and
(6) Any revision of the authoritative copy is readily
identifiable as authorized or unauthorized.
(d) Except as otherwise agreed, a person having control of a
transferable record is the holder, as defined in section 1-201(20)
of the Uniform Commercial Code, of the transferable record and has
the same rights and defenses as a holder of an equivalent record or
writing under the Uniform Commercial Code, including, if the
applicable statutory requirements under section 3-302(a), 7-501, or
9-308 of the Uniform Commercial Code are satisfied, the rights and
defenses of a holder in due course, a holder to which a negotiable
document of title has been duly negotiated, or a purchaser,
respectively. Delivery, possession and indorsement are not
required to obtain or exercise any of the rights under this
(e) Except as otherwise agreed, an obligor under a
transferable record has the same rights and defenses as an
equivalent obligor under equivalent records or writings under the
Uniform Commercial Code.
(f) If requested by a person against which enforcement is
sought, the person seeking to enforce the transferable record shall
provide reasonable proof that the person is in control of the transferable record. Proof may include access to the authoritative
copy of the transferable record and related business records
sufficient to review the terms of the transferable record and to
establish the identity of the person having control of the
§39A-1-17. Creation and retention of electronic records and
conversion of written records by governmental agencies.
Each governmental agency of this state shall determine
whether, and the extent to which, it will create and retain
electronic records and convert written records to electronic
§39A-1-18. Acceptance and distribution of electronic records by
(a) Except as otherwise provided in section 12(f), each
governmental agency of this state shall determine whether, and the
extent to which, it will send and accept electronic records and
electronic signatures to and from other persons and otherwise
create, generate, communicate, store, process, use and rely upon
electronic records and electronic signatures.
(b) To the extent that a governmental agency uses electronic
records and electronic signatures under subsection (a), the
governmental agency, giving due consideration to security, may specify:
(1) The manner and format in which the electronic records must
be created, generated, sent, communicated, received and stored and
the systems established for those purposes;
(2) If electronic records must be signed by electronic means,
the type of electronic signature required, the manner and format in
which the electronic signature must be affixed to the electronic
record, and the identity of, or criteria that must be met by, any
third party used by a person filing a document to facilitate the
(3) Control processes and procedures as appropriate to ensure
adequate preservation, disposition, integrity, security,
confidentiality and auditability of electronic records; and
(4) Any other required attributes for electronic records which
are specified for corresponding nonelectronic records or reasonably
necessary under the circumstances.
(c) Except as otherwise provided in section 12(f), this
chapter does not require a governmental agency of this state to use
or permit the use of electronic records or electronic signatures.
Each governmental agency of this state which adopts standards
pursuant to section eighteen may encourage and promote consistency and interoperability with similar requirements adopted by other
governmental agencies of this and other states and the federal
government and nongovernmental persons interacting with
governmental agencies of this state. If appropriate, those
standards may specify differing levels of standards from which
governmental agencies of this state may choose in implementing the
most appropriate standard for a particular application.
§39A-1-20. Severability clause.
If any provision of this chapter or its application to any
person or circumstance is held invalid, the invalidity does not
affect other provisions or applications of this chapter which can
be given effect without the invalid provision or application, and
to this end the provisions of this chapter are severable.
§39A-1-21. Effective date.
This chapter takes effect on the first day of July, two
Note: The purpose of this bill is to adopt the Uniform
Electronic Transactions Act as approved by the National conference
of Commissioners on Uniform State Laws in July, 1999 and
recommended for enactment in all states.
This chapter is new; therefore, strike-throughs and
underscoring have been omitted.
This bill has been recommended by the Commission on Interstate Cooperation for introduction and passage this session.