Online enrolments

We all want to make things simpler and more efficient. And there’s no doubt that going online these days is simpler than dealing with hard copies — both for schools and parents.

Allowing parents to complete an application online is sensible and carries no significant legal risks because you aren’t entering a binding legal relationship at that point.

But can parents accept the offer of a place online?

Yes, an offer can be accepted online and a contract formed as a result. The Electronic Transactions Act 2000 (NSW) states that a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications or contains an electronic signature. There is similar legislation in all states and territories. However, while I understand the appeal of asking parents to accept the enrolment offer and terms online, there are some risks in doing so.

When a person physically signs a document, unless there’s fraud or misrepresentation, the person is bound by what the document says even if the person doesn’t read it. Therefore, when parents sign the enrolment terms, they’re bound by them.

However, legally, this isn’t as clear in relation to online contracts. By having parents accept the terms online, the school is increasing the possibility that the parents won’t be bound by the terms because the school didn’t give “reasonable” notice of them.

There are ways to minimise the risks; for example, by ensuring that the terms are visible on the same page as the box parents check to accept. Making parents scroll through the enrolment terms before checking the box demonstrates that your school has taken steps to encourage parents to read them. If a dispute about your conditions arises, this places the school in a far stronger position than one which hides its conditions elsewhere.

Also, by making parents scroll through the conditions, you know that they have at the very least seen them. This means they should understand that they’ve agreed to legal terms. You never know, some might even read them!

If a school is going to form contracts online, this method will almost certainly bind the parent who clicks the button. But schools normally want both parents to be bound by the enrolment terms. It’s easy to have two parents sign a document. But how can both parents click a button? If there’s ever a dispute, one parent could say he or she never agreed and that it was the other parent who is bound. Practically, this is likely to be true and the school may only be able to enforce the contract against one parent.

A New South Wales District Court case a couple of years ago had to consider this issue, although the case didn’t involve a school. Rather, a finance company agreed to lend money to a company which sold caravans and recreational vehicles. The process involved the borrower company filling in an application form and having both directors, a husband and wife, agree to guarantee the loan. All the documentation was effected online with signatures using DocuSign. Except for the original application form which bound the company because both directors signed it, the Court found that the husband used his wife’s DocuSign account to sign the guarantee on her behalf without her authority. Accordingly, when the company went into liquidation, the finance company was unable to recover Its money from the wife.

DocuSign metadata provided evidence about where and when documents were signed. This demonstrated that the husband’s evidence was unreliable.

Using DocuSign, AdobeSign or comparable applications allows schools to reduce the risk of not being able to sue both parents. The school could send the offer document to each parent’s email address requiring the offer to be accepted by using the signing application. Once that’s been done, the app sends each party a fully signed copy.

Unfortunately, nothing is foolproof.

From a marketing point of view, it comes down to the convenience of the online contract formation versus the risk of only one parent being bound. Also, remember that the enrolment contract isn’t just a business contract; it’s the basis for a relationship. Schools really want new parents to read the enrolment terms. There’s a better chance of that happening on paper. Rather than wait for the offer to be made, schools may wish to emphasise to parents at the interview stage the importance of them reading the enrolment conditions before accepting an offer. Parents could be given a paper copy of the conditions at the interview and be encouraged to read them.

School marketers put in great efforts to get parents to apply for enrolment. Making the enrolment process as seamless as possible will convert those efforts into signed contracts.

David Ford is a Partner of Carroll & O’Dea Lawyers, known for his expertise in education law. With over 30 years’ experience advising Australian educational institutions, he also advises school boards on governance and conducts workplace investigations for schools.
SMJ David Ford

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