Due to the health crisis we are increasingly required to use electronic signatures, whether at the bank or for a property transaction. But is this a valid process? And if so, under which conditions?
IN PRINCIPLE THE ELECTRONIC FORMAT IS EQUIVALENT TO THE PAPER FORMAT.
According to article 1366 of the French Civil Code, ”Electronic writing has the same probative force as writing on paper, provided that the person from whom it originates can be identified and that it is created and stored in such conditions as to guarantee its integrity”.
As such, electronic documents and paper documents are equivalent provided that a process is used to guarantee:
- the reliability of the identification of signatories,
- the protection of the document and its integrity.
The only exceptions are provided in article 1175 of the French Civil Code. These are:
-signed documents relating to family law ; and
-signed documents relating to personal or real property collateral, such as a bond, unless they are entered into by a person for business reasons.
THE ISSUE OF HANDWRITTEN STATEMENTS
Under 1174 of the French Civil Code: "Where the signatory is required to provide a handwritten statement, this may be attached in electronic form provided that this is done in such a way to guarantee that it could only have been performed by the signatory”.
The process must involve typing the statement letter-by-letter and word-by-word. The idea is that there is a degree of thought. Simply copying and pasting is impossible. Today, few signature tools offer this guarantee.
Consequently, it will not be possible to sign electronically in cases where a handwritten statement is a legal requirement. One particular instance is where, in the case of a property purchase, the buyer waives the condition precedent of obtaining a loan.
PRECAUTIONS: THE REQUIREMENT FOR A QUALIFIED ELECTRONIC SIGNATURE
In order to be valid, an electronically signed document must be signed using a process that allows the person to be reliably identified.
Consequently, a scanned picture of a handwritten signature is absolutely not considered an electronic signature.
It is necessary to use a qualified signature as defined by the European eIDIAS Regulation. Only this signature is presumed to be reliable.
To ensure an electronic signature is qualified, you should check that the service provider is included in the list produced by the French National Cybersecurity Agency (Agence nationale de la sécurité des systèmes de l’information - ANSSI). www.ssi.gouv.fr
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