Chapter 42 — Execution, Formalities and Interpretation of Writings

2023 EDITION

WRITINGS

EVIDENCE AND WITNESSES

PRIVATE WRITINGS

42.010 Private writings

42.020 Execution of a writing

42.030 Subscribing witness

42.040 Proof of attested writing other than a will

SEALS

42.110 Seal defined

42.115 Effect of presence or absence of seal

42.125 Seal of state officer or state agency authorized

WITNESSING

42.141 Writing executed or acknowledged in electronic presence of witness

INTERPRETATION OF WRITINGS

42.210 Effect of the place of execution

42.220 Consideration of circumstances

42.230 Office of judge in construing instruments

42.240 Intention of the parties; general and particular provisions and intents

42.250 Terms construed as generally accepted; evidence of other signification

42.260 Ambiguous terms

42.270 Written words control printed form

42.280 Deciphering characters and translating languages

42.290 Construction of notices

42.300 Parties to written instrument not to deny facts recited therein

42.005 [1981 c.892 §79a; 1993 c.546 §96; repealed by 2001 c.104 §13]

PRIVATE WRITINGS

42.010 Private writings. All writings, other than public writings, are private and may be sealed or unsealed.

42.020 Execution of a writing. The execution of a writing is the subscribing and delivering it, with or without affixing a seal.

42.030 Subscribing witness. A subscribing witness is one who sees a writing executed, or hears it acknowledged, and at the request of the party thereupon signs one’s name as a witness.

42.040 Proof of attested writing other than a will. Any attested writing other than a will may be proved in the same manner as though it had not been attested.

42.050 [Repealed by 1981 c.892 §98]

42.060 [Repealed by 1981 c.892 §98]

42.070 [Repealed by 1981 c.892 §98]

42.080 [Repealed by 1981 c.892 §98]

SEALS

42.110 Seal defined. A seal is a particular sign made to attest in the most formal manner the execution of an instrument.

42.115 Effect of presence or absence of seal. The presence or absence of a seal, corporate or otherwise, shall have no effect upon the validity, enforceability or character of any written instrument except where specifically otherwise provided by statute. A writing under seal may be modified or discharged by writing not under seal or by a valid oral agreement. [1965 c.502 §2]

42.120 [Repealed by 1965 c.502 §6]

42.125 Seal of state officer or state agency authorized. (1) For the purposes of ORS 40.510 (1)(a) and (d), each state officer and state agency may have a seal which, unless specifically provided otherwise by law, shall consist of an impression, imprint or likeness of the state seal accompanied by the name of the state officer or state agency.

(2) As used in this section:

(a) “Seal” has the meaning given that term in ORS 42.110.

(b) “State agency” means every state officer, board, commission, department, institution, branch or agency of the state government, except:

(A) The Legislative Assembly and the courts and their officers and committees; and

(B) The Oregon Public Defense Commission.

(c) “State officer” includes any appointed state official who is authorized by the Oregon Department of Administrative Services to have a seal and any elected state official, except members of the Legislative Assembly. [1982 s.s.1 c.14 §1; 2003 c.449 §23; 2005 c.22 §32; 2023 c.281 §19]

Note: The amendments to 42.125 by section 80, chapter 281, Oregon Laws 2023, become operative January 1, 2025. See section 92, chapter 281, Oregon Laws 2023. The text that is operative on and after January 1, 2025, is set forth for the user’s convenience.

42.125. (1) For the purposes of ORS 40.510 (1)(a) and (d), each state officer and state agency may have a seal which, unless specifically provided otherwise by law, shall consist of an impression, imprint or likeness of the state seal accompanied by the name of the state officer or state agency.

(2) As used in this section:

(a) “Seal” has the meaning given that term in ORS 42.110.

(b) “State agency” means every state officer, board, commission, department, institution, branch or agency of the state government, except the Legislative Assembly and the courts and their officers and committees.

42.130 [Repealed by 1965 c.502 §6]

42.140 [Repealed by 1965 c.502 §6]

WITNESSING

42.141 Writing executed or acknowledged in electronic presence of witness. (1) As used in this section:

(a) “Electronic presence” means the relationship of two or more individuals in different locations communicating in real time to the same extent as if the individuals were physically present in the same location.

(b) “Law” means statutes, administrative rules and any other form of regulation imposed by this state or a political subdivision of this state.

(2) A witness is in the presence of a person for purposes of witnessing the execution or acknowledgment of a writing if the witness is in the physical presence or the electronic presence of the person.

(3) A writing that a person executes or acknowledges in the electronic presence of a witness is validly witnessed if, in addition to any other execution formalities required by law, all of the following requirements are met:

(a) The witness has satisfactory evidence of the identity of the person.

(b) While in the electronic presence of the witness, the person executes or acknowledges the writing and delivers or causes to be delivered by facsimile or electronic mail to the witness a copy of the executed signature page.

(A) Is located inside the boundaries of the United States;

(B) Attests to the execution or acknowledgment of the writing by signing the transmitted copy of the signature page; and

(C) Delivers or causes to be delivered by facsimile or electronic mail to the person the copy of the executed signature page, signed by the witness.

(d) The person signing the writing completes a declaration of electronic presence under penalty of perjury.

(e) The witness completes a declaration of remote attestation under penalty of perjury.

(4) A witness has satisfactory evidence of a person’s identity for the purposes of subsection (3)(a) of this section if the person is personally known to the witness or if the witness can identify the person by means of one of the following forms of identification, presented by the person to the witness while the person is in the electronic presence of the witness:

(a) A United States passport or an officially recognized passport of a foreign country, or a driver license or identification card issued under ORS 807.400 or a comparable provision in another state, that is current or that expired not more than three years before the date the person executes or acknowledges the writing; or

(b) A military identification card, an identity card issued by a federally recognized Indian tribe or other document issued by the federal government or a state, county or local government that is current or that expired no more than three years before the date the person executes or acknowledges the writing.

(5)(a) The declarations under subsection (3)(d) and (e) of this section may be completed contemporaneously with the execution or acknowledgment of the writing or at any time thereafter.

(b) The declaration of electronic presence under subsection (3)(d) of this section must be substantially in the following form:

______________________________________________________________________________

DECLARATION

(Electronic presence)

• “Electronic presence” means the relationship of two or more individuals in different locations communicating in real time to the same extent as if the individuals were physically present in the same location.

I, ________________, signed the foregoing ________ (title of document) at ________ (city), ____ (state), on ________ (date) and in the electronic presence of ________________ (witness name), whom I requested to become attesting witness.

I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is subject to penalty for perjury.

________________

Signature

(print name, address, telephone number and e-mail address)

______________________________________________________________________________

(c) The declaration of remote attestation under subsection (3)(e) of this section must be substantially in the following form:

______________________________________________________________________________

DECLARATION

(Remote attestation)

I, __________ (witness name), was electronically present on _____ (date) when _______ (signer name) in my electronic presence signed the attached signature page to ________ (title of document) and, at the request of the foregoing signer, I signed my name as witness at the foregoing date.

I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is subject to penalty for perjury.

________________

Witness signature

(print name, address, telephone number and e-mail address)

______________________________________________________________________________

(6) A writing witnessed in compliance with subsection (3) of this section may be executed, acknowledged or witnessed in counterparts, which together shall be considered a single writing.

(7)(a) Subsection (3) of this section applies to the witnessing of any writing that is required by law to be executed or acknowledged in the presence of a witness.

(b) Notwithstanding paragraph (a) of this subsection, this section does not apply to:

(A) A notarial act performed by a notarial officer, as those terms are defined in ORS 194.215;

(B) The witnessing of the execution of a will under ORS 112.232 or 112.235; or

(C) The witnessing of signatures by the circulator of a petition pursuant to ORS chapter 198, 221, 248, 249, 250, 255, 261 or 545.

(8) Nothing in this section is intended to affect provisions of law regarding the execution of wills, including the application of ORS 112.238 to writings not executed in compliance with ORS 112.235. [2021 c.273 §1]

42.150 [Repealed by 1965 c.502 §6]

42.160 [Repealed by 1965 c.502 §6]

INTERPRETATION OF WRITINGS

42.210 Effect of the place of execution. The language of a writing is to be interpreted according to the meaning it bears in the place of execution, unless the parties have reference to a different place.

42.220 Consideration of circumstances. In construing an instrument, the circumstances under which it was made, including the situation of the subject and of the parties, may be shown so that the judge is placed in the position of those whose language the judge is interpreting.

42.230 Office of judge in construing instruments. In the construction of an instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all.

42.240 Intention of the parties; general and particular provisions and intents. In the construction of an instrument the intention of the parties is to be pursued if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it.

42.250 Terms construed as generally accepted; evidence of other signification. The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible that they have a technical, local, or otherwise peculiar signification and were used and understood in the particular instance, in which case the agreement shall be construed accordingly.

42.260 Ambiguous terms. When the terms of an agreement have been intended in a different sense by the parties, that sense is to prevail, against either party, in which the party supposed the other understood it. When different constructions of a provision are otherwise equally proper, that construction is to be taken which is most favorable to the party in whose favor the provision was made.

42.270 Written words control printed form. When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls.

42.280 Deciphering characters and translating languages. When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language.

42.290 Construction of notices. A written notice is to be construed according to the ordinary acceptation of its terms. Thus, a notice to the drawers or indorsers of a bill of exchange or promissory note, that it has been protested for want of acceptance or payment, shall be held to import that it has been duly presented for acceptance or payment and refused, and that the holder looks for payment to the person to whom the notice is given.

42.300 Parties to written instrument not to deny facts recited therein. Except for the recital of a consideration, the truth of the facts recited from the recital in a written instrument shall not be denied by the parties thereto, their representatives or successors in interest by a subsequent title. [1981 c.892 §83]

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