Electronic signature law in commercial contracts in France
- Definition and formal requirements of written legal statements or legal statements legally binding if the law requires written form
- Examples for legal statements and contracts where written form is required
- Are there special legal provisions for digital archiving and storage of electronic documents? If yes, please describe them
- Main and relevant court practices
- In which cases are documents only with wet ink signatures accepted?
- List of the relevant national legislation
- Are the following use cases deemed as written legal statements / legal statements legally binding if the law requires written form in your jurisdiction?
jurisdiction
1. Definition and formal requirements of written legal statements or legal statements legally binding if the law requires written form
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.
2. Examples for legal statements and contracts where written form is required
- 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).
3. Are there special legal provisions for digital archiving and storage of electronic documents? If yes, please describe them
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.
4. Main and relevant court practices
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).
5. In which cases are documents only with wet ink signatures accepted?
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).
6. List of the relevant national legislation
- 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. Are the following use cases deemed as written legal statements / legal statements legally binding if the law requires written form in your jurisdiction?
1. Electronic document signed with qualified electronic signature (QES as defined in the eIDAS Regulation) and with a time stamp | Yes |
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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) | No |
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 | No |
8. Legal statement sent as a text of an ordinary e-mail without an electronic signature, but with a standard e-mail signature panel | No |
9. Legal statement sent in an SMS | No |
10. Electronic document with a copy-pasted image of a handwritten signature, sent as an attachment of an ordinary e-mail | No |
11. Electronic document with the typed name of the signer and sent as an e-mail attachment | No |
12. Electronic legal statement sent in a social-media message sending application (e.g. Messenger, Viber, LinkedIn, Facebook message, etc.) | No |
13. Electronic legal statement sent in a chat application | No |
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 | No |
15. Electronic document signed in DocuSign/Adobe Sign with a simple standard electronic signature (no QES or AdES) | No |
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") | No |
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.
