E-signatures in commercial contracts in Romania
- 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 with wet ink signatures required?
- 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
If a paper-based contract is signed with a handwritten signature. An electronic contract will be deemed
written if:
- it is signed with a valid qualified electronic signature (QES) by a signatory or its legal representative (for legal entities); 4
- the time of the signature can be identified; and (3) the content of the electronic document is unchanged and this can be proved (integrity).
As a rule, a QES can only be issued by certified providers of QES in accordance with Romanian law.
However, for certain consumer contracts, e.g. the provision of telecommunication services, a QES is not required from consumers to conclude contracts in electronic form. Similarly, in commercial transactions, counterparts’ signatures are valid, i.e. each party signs and dates a paper-based document by hand based on a scanned copy of the handwritten signed counterpart document emailed and received by the other party.
2. Examples for legal statements and contracts where written form is required
Under Romanian law, a written form is mandatory either for evidentiary purposes, to prove the existence of a contract, or for validity purposes where, in the absence of a written form, the contract is void.
For validity reasons, rural leases (contract de arendare), public procurement and concession contracts, guarantee contracts (fidejusiune), licence and right transfer contracts for copyright, neighbouring rights, contracts on mortgages over movable assets, pledges or security deposits, and leasehold agreements must be in writing.
3. Are there special legal provisions for digital archiving and storage of electronic documents? If yes, please describe them
N/A
4. Main and relevant court practices
Following decision by the High Court of Cassation and Justice, the equivalence of handwritten signature and QES has been confirmed.
5. In which cases are documents with wet ink signatures required?
Civil acts, e.g. birth certificates, regulated types of will, which must be handwritten (olograf) as well as documents which must be sent by registered letter for notification purpose, e.g. delay notices communicated by registered mail, are accepted only with wet-ink signatures.
6. List of the relevant national legislation
- Romanian Civil Code,
- Romanian Code of Civil Procedure,
- Law 455/2001 on the electronic signature,
- Technical and methodological norms for the application of Law no. 455/2001 on electronic signature,
- Law 451/2004 on time stamps, Law 135 from 2007 on electronic archiving,
- Law 16/1991 on national archives,
- Government Emergency Ordinance no. 34/2014 on consumer rights in long distance contracts,
- Law 365/2002 on contracts concluded by electronic means,
- EU eIDAS Regulation
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 | No |
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 | No |
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 | Yes - in commercial transactions concluded at or over long distance counter-parts signature is acknowledged as valid based on a similar practice being observed (i.e. each party signs and dates a paper based document by hand signature and on obtaining the scanned copy of the handwritten signed counter-part document emailed by the other party). |
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 | No - while the qualified electronic seal is recognised and used to certify the authenticity of documents issued by legal persons in Romania, it does not replace the QES requirement for contracts to be concluded in written form. |
17. Agreements accepted by the other party online, by ticking a checkbox or by clicking on a button ("click on agreements") | Yes (only for certain contracts concluded with consumers) |
