Electronic signature law in commercial contracts in Mexico
- 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
There are two types of electronic signature: (i) standard e-signature ("SES"); and (ii) advanced e-signature ("AES").
Requirements of an AES:
- it is uniquely linked to the signatory;
- it is capable of identifying the signatory;
- it is created using means that are under the signatory’s sole control; and
- it is linked to other electronic data in such a way that any alteration to the said data can be detected.
AES can only be provided by a provider certified by the relevant authorities.
2. Examples for legal statements and contracts where written form is required
E-signatures are not permitted to be used for documents which require notarization, for example for any of the following:
- Real estate property transfer contracts and deeds;
- inheritance contracts;
- granting powers of attorney;
- articles of incorporation for civil/mercantile companies;
- promissory notes and guarantees; and
- mortgage or guarantor agreements.
3. Are there special legal provisions for digital archiving and storage of electronic documents? If yes, please describe them
As a general rule, all documents containing rights and obligations must be kept for 10 years from the date of their validity. This includes electronic documents, which can be stored electronically.
In accordance with article 13 of the Advanced Electronic Signature Act ("AESA"), each unit and entity will create and administer an electronic transaction system to establish access control, backups and information retrieval, with security mechanisms, availability, integrity, authenticity, confidentiality and custody.
4. Main and relevant court practices
AES have the same evidentiary properties as regular signatures. Article 7 of the AESA states that electronic documents and data messages with AES will have the same effects as those presented with an autograph signature.
5. In which cases are documents only with wet ink signatures accepted?
- Real estate property transfer contracts and;
- Inheritance/probate contracts;
- Documents granting powers of attorney; and
- Articles of incorporation for civil/mercantile companies.
6. List of the relevant national legislation
- Advanced E-signature Law and its Regulation;
- Federal Commerce Code; and
- Federal Civil Code.
Many states have also enacted their own e-signature laws in addition to the Federal laws noted above.
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 | The QES is not specifically regulated in Mexico and would need to meet the AES requirements. |
|---|---|
2. Electronic document signed with qualified electronic signature (QES as defined in the eIDAS Regulation) without a time stamp | No |
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 | No |
5. Electronic document signed with advanced biometric signature | Yes, if compliant with AES requirements. |
6. Electronic document signed with a simple, standard electronic signature (SES) | Yes, but these are not recommended as more difficult to prove attributability before a judge. |
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.) | Yes, as long as it is signed and meets the legal requirements. |
13. Electronic legal statement sent in a chat application | Yes, as long as it is signed and meets the legal requirements. |
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) | Yes, depending on the nature of the document and the contracting entities. |
16. Electronic document signed with a qualified electronic seal as defined in the eIDAS Regulation | No, the nature of the seal is not to guarantee the validity of the signature but the validity of the person who issued the document. |
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)
The Yes/No requirement depends greatly on the nature of the document. A standard electronic signature may, legally, be sufficient but contrary to industry practices and / or viewed unfavourably by a judge.
