Electronic signature law in commercial contracts in France

The written form consists of a sequence of letters, characters, numbers or any other signs or symbols with an intelligible meaning, whatever the form (Art. 1365 of the Civil Code).

An electronic legal statement shall be deemed as written, if 1) the person from whom it proceeds can be duly identified and 2) it is established and stored in conditions that guarantee its integrity (Art. 1366). A time stamp is not required to be provided.

• Assignment of a contract;
• Assignment of debt;
• Contract on pledge of receivables;
• Assignment or licence related to copyrights;
• Assignment or licence related to patent rights;
• Commercial lease;
• Assignement of a business (cession de fonds de commerce);
• Contract on suretyship (cautionnement);
• Contract on pledge (nantissement);
• Contract on security deposit (réserve de propriété);
• Insurance contract.

(The written form can be required for validity or as evidence).

Yes. When written form is required for the validity of a contract, the original electronic document shall be completed and stored under conditions that guarantee its integrity (Art. 1366).

For storage of the electronic documents, it is recommended for companies to use an electronic archiving system that guarantees the probative value of the documents. This requirement can be reached by implementing a documented archiving policy and/or complying with technical standards such as AFNOR NF Z 42-013. An alternative solution consists in outsourcing the storage to a trusted or certificated IT provider. 

The French Civil Supreme Court has held that the  criteria of Art. 1367 regarding the validity of e-signatures is sufficient to allow for reliance on an e-signed legal statement. 

To that extent, there is no need to rely on a qualified e-signature to ensure the validity of an electronically signed legal statement if the e-signature consists in 1) using  a reliable means of identification; and (2) that guarantees its link with the act it is attached to.

However, from a practical perspective, documents signed with qualified or advanced e-signatures can be deemed as legally binding written documents if the law requires written form. Using qualified e-signatures allows the signatories to benefit from Art. 1367's legal reliability presumption. The reliability of an advanced e-signature shall be proven (Cass. Civ. 1ère, No. 15-10.732).

The use of an e-signature is excluded for 1) legal statements related to securities of civil or commercial nature, unless they are entered into by persons for the needs of their profession (Art. 1175 ); and 2) commercial instruments (e.g. bills of change, promissory notes, bank checks).

• EU eIDAS Regulation.
• Civil Code:  Art. 1174 to 1177 (contracts entered into by electronic means), Art. 1356 (probative contracts) and Art. 1365 to 1367 (evidence in writing);
• Decree No. 2017-1416 (Art. 1367 reliability presumption criteria);
• Commercial Code: Art. L. 110-3 (evidence of commercial acts).

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

Please note that, in regard to traders, commercial acts may be proven by any means unless the law specifies otherwise (L. 110-3 of the Commercial Code). 

Moreover, signatories may enter into a contract to adapt legal provisions related to evidence or increase the probative value if it is not excluded by law (Art. 1356 of the Civil Code).

In such specific cases, all aforementioned use cases can be deemed as legally binding under French law.