Electronic signature law in commercial contracts in Chile

Law 19,799 on Electronic Documents, sets out the validity of obligations  undertaken through electronic means by establishing the principle of functional equivalence.

Under the principle of functional equivalence an obligation undertaken through electronic means has the same validity and effect as an obligation undertaken on paper by a handwritten or holographic signature.

Consequently, acts and contracts concluded by electronic means are deemed as being concluded in writing for all legal purposes.

Therefore, a contract cannot be unenforceable because it was concluded electronically.

Nevertheless, the facts must be proved in court.

According to Article 3 of the aforementioned law, electronic signature will not have functional equivalence in cases where;

1. solemnity is to be established which cannot be undertaken by electronic signature,
2. the law require the physical presence of one of the parties,
3. all acts regarding family law.

Some examples of legal statements and contracts where written form is required are:

1. Notarization – Sale or transaction relating to real estate property (Article 1801 Civil Code)
2. Notarization - Mortgage and Pledge (Article 2469 Civil Code)
3. Notarization – Mercantile Pledge 
4. Termination Notices
5. Consumer Loan Agreements

According to the law, Certification Service Providers must keep a publicly accessible registry of the certifications granted to a certain electronic firm. The data necessary for that registry must be kept by the service provider for at least 6 months and cannot be used for other purposes.

N/A

Electronic signature will not have the functional equivalence in cases where; a) solemnity is established and it cannot be undertaken by electronic signature, b) the law requires the presence of one of the parties, c) all acts regarding family law.

• Ley 19.799, Sobre Documentos Electrónicos, Firma Electrónica y Servicios de Certificación de Dicha Firma
• Reglamento de la Ley 19799 Sobre documentos Electrónicos, Firma Electrónica y la Certificación de dicha Firma

Please bear in mind that, notwithstanding the exceptions aforementioned, under Chilean law written signatures are not necessarily required for a valid contract – contracts are generally valid if legally competent parties reach an agreement and both manifest their consent, whether they agree verbally, electronically or by way of paper document.

However, the form this agreement takes places will have different "probatory value", as explained further in this document.

7.1 Remarks/Comments to use cases (if yes/no answer is not sufficient):

Under Chilean law, a written signature is not necessarily required for a valid contract – contracts are generally valid if legally competent parties reach an agreement, and both manifest their consent, whether they agree verbally, electronically or by way of paper document.

Although to prove a valid contract, parties sometimes must present evidence in court. Law 19799 confirms that contracts cannot be unenforceable merely because they are concluded electronically.

Also, even though under the principle of functional equivalence an obligation undertaken through electronic means has the same validity and effect as obligation undertaken on paper by a handwritten or holographic signature, depending on the class of that electronic signature it would have different probatory value.

Instruments signed by means of advanced electronic signature are considered "Plena Prueba" (literally “full proof”) - one of the highest probatory values, other than in respect of the date of the document, unless the date was included by means of an electronic dating system provided by a certified service provider.  

Also, it is important to consider that the declarations on the document would be considered as “full proof” only on the fact that those declarations were made by the author, but not on the truth of such declarations