E-signatures in commercial contracts in Colombia

If the legal declaration is on paper, it must be signed with a handwritten signature. Such a handwritten declaration shall need additional formalities to be in place in some specific cases (i.e. real estate purchase agreements and other purchase agreements related to specific assets that need public registration, see the response below). If the legal declaration is electronic, the electronic signature, in order to be legally valid, in accordance with Decree 2364 of 2012, must be:

  1. Unique to the person who uses it;
  2. Capable of being verified;
  3. Under the exclusive control of the person who uses it;
  4. Linked to the information or message in such a way that, if this is changed the signature is invalidated.

It is important to bear in mind that according to article 14 of Law 527 of 1999, in the formation of any contract, the offer and its acceptance may be expressed by a data message (e.g. an e-mail). An agreement  will not be denied validity for the sole reason that one or more data messages was used in its formation. This is the case unless the parties expressly agree that the contract cannot be formed by these means.

According to the Colombian Commercial code, the following contracts must be in writing:

  • Real estate purchase agreement
  • Commercial agency agreement
  • Chartering agreement
  • Factoring agreement
  • Commercial (and civil) trust agreement
  • Maquila agreement
  • Outsourcing agreement
  • Franchise agreement

Yes. Regarding electronic documents as evidence, Decree 2609 of 2012 establishes this in article 22 and following that it is the responsibility of Public Entities to comply with essential elements such as authenticity, integrity, inalterability, reliability, availability and conservation, which guarantee that electronic documents maintain their evidence value throughout the process. The Decree establishes requirements that should be met for the presumption of authenticity, integrity, inalterability, reliability, preservation and conservation of electronic archive documents. 

Article 12 of Law 527 of 1999, on the other hand, states that in cases where the law requires certain documents, records or information to be preserved, the requirement will be satisfied, as long as: 1) the information contained therein is accessible for later consultation; 2) the data message or document is preserved in the format in which it was generated, sent or received or in a format that can accurately reproduce the information generated, sent or received; and 3) that all the information, if any, is kept to determine the origin, destination of the message, date and the time when the message was sent or received or the document produced.

Regarding companies, Article 28 of Law 962 of 2005 states that the company documentation must be kept and stored for a period of ten (10) years from the date of the last entry, document, or receipt, but for this purpose it may choose to do so in written form, or on any technical, magnetic or electronic medium as long as the requirements established on Article 12 of Law 527 of 1999 are met.

As for taxes, companies must preserve their accounting evidence (support) during the time it takes for the tax return to become effective (Article 304 of Law 1819 of 2016), electronic documents must comply, as well, with the requirements of the abovementioned Article 12.

4. Main and relevant court practices

In the Constitutional Court judgment C-831 of 2001. M. P. Álvaro Tafur Galvis, sets out that: "Courts, tribunals and judicial corporations may use any technical, electronic, computer and telematic means for the fulfillment of their functions and that the documents issued by said means, regardless of their support, shall enjoy the validity and effectiveness of an original document as long as its authenticity, integrity and compliance with the requirements of procedural laws are guaranteed".

The Supreme Court of Justice judgment of December 16, 2010 sets forth that:  "The data messages in order to be considered valid had to comply with completeness, that is, that the document is received in its entirety by the recipient, the inalterability in the sense that the data message has not been modified since its issuance, the traceability that the document always maintains its originality  and thus prove its authenticity, the recoverability in relation to subsequent consultations and the preservation of the document, since they can be destroyed or altered by computer viruses".

5. In which cases are documents only with wet ink signatures accepted?

Under the Colombian legislation, a wet-ink signature is understood as the handwritten signature. Consequently, all contracts that must be notarised must have a handwritten signature, such as a real estate purchase and sale agreement, any contract that involves a real estate transfer, civil trust, and civil society contracts (their extensions and modifications), among others.

6. List of the relevant national legislation

  • Law 527 of 1999 and its regulatory Decrees:
    • Decree 1747 of 2000​,
    • Decree 19 of 2012​, and
    • Decree 2364 of 2012,
  • Law 1150 of 2007​,
  • Law 962 of 2005​,
  • CONPES Document 3620 of 2009​,
  • Decree 2609 of 2012,
  • Decree 1074 of 2015​,
  • Decree 1078 of 2015​,
  • Decree 1625 of 2016​ ,
  • DIAN Resolution No. 70 de 2016 ,
  • DIAN Resolution No. 22 de 2019

1. Electronic document signed with qualified electronic signature (QES as defined in the eIDAS Regulation) and with a time stamp

Yes 

2. Electronic document signed with qualified electronic signature (QES as defined in the eIDAS Regulation) without a time stamp

Yes

3. Electronic document signed with advanced electronic signature (AdES as defined in the eIDAS Regulation) and with a time stamp

Yes  

4. Electronic document signed with advanced electronic signature (AdES as defined in the eIDAS Regulation) without a time stamp

Yes

5. Electronic document signed with advanced biometric signature

Yes

6. Electronic document signed with a simple, standard electronic signature (SES)

Yes

7. Scanned electronic version of the original paper-based document with handwritten signature sent as an attachment in ordinary e-mail without an electronic signature, but with standard e-mail signature panel

Yes

8. Legal statement sent as a text of an ordinary e-mail without an electronic signature, but with a standard e-mail signature panel

Yes

9. Legal statement sent in an SMS

Yes

10. Electronic document with a copy-pasted image of a handwritten signature, sent as an attachment of an ordinary e-mail

Yes*

11. Electronic document with the typed name of the signer and sent as an e-mail attachment

Yes*

12. Electronic legal statement sent in a social-media message sending application (e.g. Messenger, Viber, LinkedIn, Facebook message, etc.)

Yes

13. Electronic legal statement sent in a chat application

Depends.*

14. Electronic document created on an electronic platform ensured by the other party requesting the legal statement (without an electronic signature) by another party whom the operator of the platform granted access 

Depends.*

15. Electronic document signed in DocuSign/Adobe Sign with a simple standard electronic signature (no QES or AdES)

Yes

16. Electronic document signed with a qualified electronic seal as defined in the eIDAS Regulation

Yes
 

17. Agreements accepted by the other party online, by ticking a checkbox or by clicking on a button ("click on agreements")

Yes*

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

Tools such as e-mail, SMS and social-media message-sending applications are considered to be valid data messages that can provide consent under private contract as a general rule under Colombian law due to the fact that they contain the necessary data that allow for the author of the message to be fully identified (Article 7 of Law 527 of 1999). This is the case provided that the account or telephone number holder is disclosed. Additionally, methods must be both reliable and appropriate for the purpose for which the message was generated or communicated.

Regarding written documents, Article 6 of the abovementioned law states that in cases where any regulation requires the information to be in writing, that requirement shall be satisfied by a data message if the information contained therein is accessible for subsequent consultations.

*10 and 11: The e-mail account must belong to whoever signed the attached document. 
*13: Chat applications must comply with requirements of Article 7 of Law 527 of 1999. This means, the application must contain the necessary data that allows for the author of the message to be fully identified and that it must be a reliable and appropriate method for the purposes that the message was generated or communicated.
*14: This depends on whether the platform meets the requirements set out in Law 527 of 1999 regarding the legal requirements for data messages. The platform must contain the necessary data that allows for the author of the message to be fully identified and that it must be both a reliable and appropriate method for the purposes the message was generated or communicated.
*17: Yes, as long as the accepting party has nearby access to the subject of the document's agreement.

Diana Moreno
Diana Moreno
Associate
Bogotá
Carolina Arenas
Carolina Arenas
Partner
Bogotá
Alejandra Vásquez
Paralegal
Bogotá
María Camila Piedrahita-CMS-Colombia
María Camila Piedrahita
Associate
Bogotá