The legal validity of contracts signed with advanced electronic signatures

Posted by media on January 10, 2017 at 9:00 AM

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In Spain, the legal effects of contracts are governed by private law. The Spanish legal system has granted autonomy to parties, giving them freedom to agree or negotiate the aspects that are of their interest (provided they are not illegal and do not violate morality and good manners). Therefore, such agreements shall be binding for the parties.

The latter is based on the fundamental principle of the Spanish Civil Law called "pacta sunt servanda", and on the effects of Article 1258 of the Spanish Civil Code, which states: "contracts are perfected by mere consent, and since then they are compelling, not only to the fulfillment of what they expressly agreed, but also to all consequences that, according to their nature, are in accordance with good faith, use and law. 

In this post we want to talk about the legal effects of contracts signed by parties that are in different places at the time of signing, and who sign the contract via a technological medium such as the advanced electronic signature.

This post is also available in Spanish.


The legal validity of contracts

As indicated by the Spanish general norms of law, in order for the act negotiated or agreed by the parties to have legal validity, it is important that the following elements concur, as stated by the Spanish Civil Code:

  • that there is the will or consent of the parties (articles 1.262 to 1.270),
  • that there is an object or contractual purpose (articles 1271 to 1273) and
  • that the mentioned object is based on a legal cause (articles 1274 a 1277).

The current use of technological means allow for the consent to be manifested regardless of the place where the parties are located. This means that the consent which was once expressed through a handwritten signature in a given scenario, would be formalized in different scenarios by using an electronic signature. In case the contract is signed electronically, it would have legal validity when the same elements mentioned in the previous paragraph occur, which apply equally to the contract signed in person.

How to demonstrate that the legal elements necessary have occured for a contract signed in virtual environments to have legal validity?

In contracts formalized in virtual environments there is  legal validity when it can be demonstrated that the consent has been given by the party/s linked to the contract by an electronic signature, thus fulfilling the legal requirements mentioned at the beginning of this post.

In this regard, there are currently technological tools or solutions that offer the advanced electronic signature service, which allows compliance with the legal standards required by law, thus enabling the acts issued by the parties to be valid and binding.

At the technical level, the advanced electronic signature consists of issuing a signature  certificate , in which elements such as geolocation, biometric data encryption and time stamping come together to create a document that technically certifies the signer’s will.


What are the legal requirements for the advanced electronic signature?

The regulatory framework for advanced electronic signatures in the EU is established by Regulation (EU) No. 910/2014, known as eIDAS, which concerns electronic identification and trust services for electronic transactions in the internal market.

In Spain, the electronic signature is governed by Law 59/2003 of December 19, concerning the electronic signature, which was modified by Law 56/2007 of December 28, of Measures to Promote the Information Society, and by Law 25/2015 of July 28, of second chance mechanism, reduction of the financial burden and other measures of social order.

Regulation (EU) No. 910/2014 repealed the previous Directive - called Directive 1999/93 - the transposition of which gave rise to the Spanish Law 59 of 2003. This law is therefore still in force (tacit derogation) and will disappear when there is an express repeal with the national regulations that they adopt in its replacement.

Article 26 of Regulation (EU) No. 910/2014 indicates the legal requirements of advanced electronic signatures, requiring the following:

  • “it is uniquely linked to the signatory;
  • it is capable of identifying the signatory;
  • it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and
  • it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable”.

Article 25 of the same regulation establishes the probative value of the advanced electronic signature when it states:

“An electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures. A qualified electronic signature shall have the equivalent legal effect of a handwritten signature. (...)”

According to all of the above, the advanced electronic signature enjoys recognition and legal support in Spain. The use of the same is becoming increasingly common, being the responsibility of each company to choose the appropriate tool.

If it is intended for the consent of legal acts to be supported by evidence (have probative value), it is important to use an appropriate technological instrument and, in particular, that this instrument complies with the legal requirements of advanced electronic signatures commented on in this article and established by Regulation (EU) No. 910/2014.

This post is also available in Spanish.

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Ana_Maritza_Vega_Suarez_AVATIC.jpg This is a guest post by Ana Martiza Vega Suárez.

Ana Maritza is lawyer specialized in new technologies and intellectual property as well as being the founder of Avatic Abogados.


@AnaVegaSuarez
@AvaticAbogados

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Topics: Legality