The use of electronic signature and electronic document for the conclusion of agreements.

This article analyzes the conclusion of contracts under Italian law where parties decide to use the electronic signature and the electronic document.

The legal framework

Under Italian laws, electronic document, electronic signature and digital signature are regulated in the d. l. no. 82 of 7 March 2005, “Digital Administration Code” (“CAD“), as well as, pursuant to art. 71 of the CAD, in the guidelines (“Technical Rules“) issued by the Agenzia per l’Italia Digitale (“AgID“).

The provisions of CAD and Technical Rules apply to public administrations, public service operators and public control companies. However, Article 2(3) of the CAD states that the provisions of CAD and Technical Rules concerning, inter alia, the electronic document, electronic signatures, reproduction and storage of electronic documents, digital domicile and electronic communications “also apply to private individuals, unless otherwise provided“.

With regard to the EU framework, on 2014 the European Parliament and the Council issued Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (“eIDAS Regulation“).

The eIDAS Regulation aims, inter alia, at building trust and confidence in online environments, which is considered fundamental for economic and social development. The eIDAS Regulation purpose is, inter alia, to enhance trust in electronic transactions in the internal market by providing a common foundation for secure electronic interaction between citizens, businesses and public authorities, thereby increasing the effectiveness of public and private online services, electronic business and electronic commerce in the Union.

The digital signature

Pursuant to article 1, letter s) of CAD, digital signature qualifies as

a particular type of qualified signature based on a system of cryptographic keys, one public and one private, related to each other, which allows the holder through the private key and a third party through the public key, respectively, to make manifest and to verify the origin and integrity of an electronic document or a set of electronic documents

Therefore, the digital signature is a particular type of qualified electronic signature (regulated under the eIDAS Regulation), characterized by specific technologies that, by reversing the cryptographic signature procedure, allow parties to verify the integrity and security of an electronic document.

According to Article 20(1-bis) of CAD

the electronic document meets the requirement of written form and has the effectiveness provided for by Article 2702 of the Civil Code when a digital signature, other type of qualified electronic signature or advanced electronic signature is affixed to it

Taking in consideration the liability for the use of digital or electronic signatures, the following article 20(1-ter) of CAD, provides that

the use of the qualified electronic or digital signature device shall be assumed to be related to the holder of the electronic signature, unless he proves otherwise

Finally, with reference to the obligations on the holder of the signature certificate, pursuant to Article 32(1) of CAD

the holder of the signature certificate is required to ensure the safekeeping of the signature device or computer authentication tools for the use of the remotely signature device , and to take all appropriate organisational and technical measures to avoid harm to others; he is also also required to personally use the signature device

The electronic signature

The European Parliament recognises that electronic documents are foundamental for the evolution of cross-border electronic transactions and contracts in the internal market, thus in order to simplify electronic agreements, the eIDAS Regulation provisions make available mutually recognised means of electronic identification between Member States.

First, according to Article 3(1) of eIDAS Regulation, electronic identification means

the process of using person identification data in electronic form uniquely representing either a natural or legal person, or a natural person representing a legal person;

Pursuat to Article 3(3) of eIDAS Regulation, person identification data, are a set of data enabling the identity of a natural or legal person, or a natural person representing a legal person to be established. Electronic identification data include data for the creation of an electronic signature, which, according to Article 3(13) of eIDAS Regulation, are unique data which is used by the signatory to create an electronic signature.

Pursuant to art. 3, n. 10), 11) and 12) of eIDAS Regulation, the electronic signatures are:

  • “standard” electronic signature: the simplest form of electronic identification, which means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign;
  • advanced electronic signature: defined as a type of electronic signature that meets certain specific requirements set out by Article 26 of eIDAS Regulation: (a) it is uniquely linked to the signatory, (b) it is capable of identifying the signatory, (c) it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control, and (d) it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable; and
  • qualified electronic signature: meaning an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures.

Electronic documents

In light of the above, it is now necessary to analyze the legal value of the digital signature and the electronic signatures when affixed to an electronic document, and in particular whether the agreements which, pursuant to Article 1350 of Italian Civil Code must be done by public deed or by private writing, can be completed by means of an electronic document signed with an electronic or digital signature.

In this regard, pursuat to Article 21(2-bis) of CAD

Except in the case of authenticated signature, private writings referred to in Article 1350, first paragraph, numbers 1 to 12, of the Civil Code, if made with an electronic document, shall be signed, under penalty of nullity, by qualified electronic signature or digital signature. The deeds referred to in article 1350, number 13), of the Civil Code drawn up on an electronic document or formed by means of electronic procedures are signed, on penalty of nullity, with an advanced, qualified electronic signature or digital signature.

Having verified that also private agreements that must be done in writing form can be settled with an electronic document, and that the electronic signatures and the digital signature must be affixed to the electronic document for the contracts referred to in Article 1350 of the Civil Code, it should be analyzed the evidential value of the electronic documents.

Under Italian laws, Article 2702 of Italian Civil Code prescribes that

the agreement is fully proven, until a false report is filed, of the origin of the declarations by the person who signed it, if the person against whom the contract is produced recognizes the signature, or if it is legally considered as recognized.

With regard to electronic documents, Article 20(1-bis) of CAD, states that

the electronic document meets the requirement of written form and has the effectiveness provided for by Article 2702 of Italian Civil Code when a digital signature, other type of qualified electronic signature or advanced electronic signature is affixed

while “in all other cases” (i.e. in the case of a simple electronic signature)

the suitability of the electronic document to meet the requirement of written form and its probative value can be freely assessed in court, in relation to the characteristics of security, integrity and unchangeability

With regard to the legal value of electronic and digital signatures, Article 20(1-ter) of CAD prescribes that the use of the qualified electronic or digital signature device shall be presumed to be attributable to the holder of the electronic signature, unless he proves otherwise. Therefore, a general normative presumption of traceability of the digital and/or qualified signature is established by the owner of the signature device.

The evidential value of the electronic or digital signature requires that the (qualified or “simple”) electronic or digital signature certificate is not revoked or suspended. In fact, according to Article 3(14) of eIDAS Regulation, the electronic signature certificate (“simple”, however, the same rules apply also to qualified certificates which differ from “simple” certificates because they are issued by a qualified trust service provider and comply with certain requirements laid down in Annex I of the eIDAS Regulation) is “an electronic certificate which links the validation data of an electronic signature to a natural person and confirms at least the name or pseudonym of that person” and, according to Article 3(14) of the eIDAS Regulation, ” an electronic attestation which links electronic signature validation data to a natural person and confirms at least the name or the pseudonym of that person “, and pursuant to Article 28(4) of eIDAS Regulation, if a qualified certificate for electronic signatures has been revoked after initial activation, it shall lose its validity from the moment of its revocation, and its status shall not in any circumstances be reverted.

It should be noted that such prescription is also set out by the CAD, thus pursuant to Article 24(3)

a qualified certificate must be used for the generation of the digital signature, provided that […] at the time of signature, it has not expired or has not been revoked or suspended.

It should be added that, given the nature of the electronic document, where the agreement is signed with an electronic or digital signature, the unity of the document is an intrinsic feature of the form of the electronic document. Therefore, the individual pages of the electronic document should not all be signed electronically or digitally, as is the case in practice with analogue documents, and the undersigned only signs the last of them.

Legal effects of electronic signatures

Article 25 of eIDAS Regulation sets out the legal effects and admissibility as evidence in legal proceedings of electronic signatures. Specifically, according to Article 25(2) of eIDAS Regulation

a qualified electronic signature shall have the equivalent legal effect of a handwritten signature.

With reference to the use in legal proceedings of the “simple” electronic signature, pursuant to Article 25(1) of eIDAS Regulation, 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.

Finally, according to Article 25(3) of eIDAS Regulation, the principle of mutual recognition of electronic signatures is established since a qualified electronic signature based on a qualified certificate issued in one Member State shall be recognised as a qualified electronic signature in all other Member States.

Use of electronic document and electronic signature in contracts concluded by exchange of correspondence

In Italy, it is very common for contracts to be signed by exchange of correspondence. In this regard, Article 1326 of Italian Civil Code provides that the agreement is concluded when the person who made the proposal has knowledge of the acceptance of the other party.

The requirement of ‘knowledge of the acceptance’ by the offeror is, in practice, met by the proponent anticipating by e-mail the copy of the offer and its acceptance signed in handwritten form. In a second step, the original documents are sent between the counterparties by courier or e-mail.

In the light of the above, the conclusion of a contract for the exchange of correspondence could also be concluded by means of electronic documents signed by electronic signatures. However, the different nature of the electronic or digital signature and the electronic document lead to certain differences in relation to the conclusion of the agreement.

Where the contract is an electronic document, the original document is the electronically signed electronic document. Therefore, in order to ensure that the counterpart is aware of the offer – i.e. has received the electronically signed document – and that the offeror is aware of the counterparty’s acceptance, it should be practice to exchange correspondence by certified electronic mail (“PEC“). The use of the PEC would provide certainty both as to the actual exchange of documents and as to the timing such exchange takes place.

Alternatively, an electronic “time stamp” can be affixed to place the signature of an electronic document in a time frame. Pursuant to Article 3(33) of eIDAS Regulation, “simple” electronic time stamp is defined as

data in electronic form which binds other data in electronic form to a particular time establishing evidence that the latter data existed at that time

The electronic time stamp affixed to the electronic document, pursuant to art. 41(2) of eIDAS Regulation, “[…] shall enjoy the presumption of the accuracy of the date and the time it indicates and the integrity of the data to which the date and time are bound “, and – pursuant to art. 41(1) of eIDAS Regulation – “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 of the qualified electronic time stamp”. Finally, as for electronic signatures, art. 41(3) of the eIDAS Regulation establishes the principle of mutual recognition for electronic time stamps.

In any case, the choice of using PEC or electronic time stamp lends itself to considerations of easy practical implementation that should be evaluated on a case-by-case basis. By way of example, the use of electronic time stamps may be preferable in relation to transactions with foreign counterparties that do not have a PEC address. In this regard, it should be noted that Articles 43 and 44 of eIDAS Regulation also prescribe electronic registered delivery service for which it is prescribed that

data sent and received using a qualified electronic registered delivery service shall enjoy the presumption of the integrity of the data, the sending of that data by the identified sender, its receipt by the identified addressee and the accuracy of the date and time of sending and receipt indicated by the qualified electronic registered delivery service

In conclusion, the use of the electronic document and electronic signatures for the signing of agreement has many advantages, allowing, among other things, to simplify and speed up the signing process (it will not be necessary to affix an acronym on every page of the document), to simplify the way the document is stored as the original is the computer document, to ensure certainty in relation to the date and time of signature.

Therefore, it is desirable that this way of signing contracts should become widespread practice.


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