One is often confronted as to whether a witness needs to sign an offer to purchase or sale agreement. There are often two spaces on agreements for a witness to sign in addition to the person signing the agreement (or representing the legal entity entering into the agreement). Is it a legal requirement for a witness to sign? It becomes an even more important question especially when the agreement is being signed using an electronic signature because it is hard for a witness to witness someone else signing with an electronic signature. They are often not in the same physical place or in each other’s physical presence.
A witness’s signature can be useful for evidentiary purposes. If a party to the agreement later avers that he/she did not sign, the person who witnessed the party signing can be called to confirm it. The witness can confirm that the specific person signed and that was the signature they made. If there are going to be witnesses present:
• the contracting party must sign in the presence of the witness, and
• it must be possible to find the witness later.
For this reason, the name and contact details of the witness must appear on the agreement in addition to their signature.
Certain financial institutions, however, insist on the contract of sale to reflect one identifiable witness before it will consider an application by the purchaser for finance.
There is nothing in law that a deed of sale or offer to purchase needs to be witnessed, but it is proposed that same be signed before two competent and identifiable witnesses. In the same vein any interlineation or amendment to the contract or offer to purchase should also be initialled by the contracting parties and the witnesses to indicate any future disputes in this regard.
Where a party to a contract disputes his signature thereon, and the contract has not been witnessed, or the witness cannot be traced, or it transpires that the party did not actually sign it in the presence of the purported witness then the evidence of forensic handwriting experts is often resorted to when attempting to prove the authenticity of the signature on a contract
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TONKIN CLACEY PRETORIA
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