E-signatures in commercial contracts in Spain
Authors
- 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
Regarding private agreements subject to our civil and our commercial code, legal requirements for a valid agreement are (i) the parties' consent; (ii) the subject of the agreement; (iii) the purpose of the agreement; and (iv) under very specific circumstances, when there is a legal provision that establishes it, agreements will need to be in written form to be valid and enforceable.
As for agreements entered into with consumers, the regulation is much stricter and lays down greater information requirements, including the following:
- Name, corporate name and registered offices of the entrepreneur responsible for the commercial offer and, if applicable, name, corporate name of the registered offices of the entrepreneur on behalf of which they act.
- The essential characteristics of the product or service in a way which is adequate according to the nature and means of communication used.
- The complete final price, including taxes, and break down, if applicable, of the amount of the increases or discounts which apply to the offer and additional costs passed on to the consumer.
- Payment procedures, delivery times and contract execution, as well as the system for processing claims, when they do not fully comply with the professional diligence as defined in the Spanish Unfair Competition Act.
- If applicable, the existence of the right to withdraw from the contract.It should be noted that information requirements are even stricter with regard to distance contracts entered into with consumers.
In these cases, in addition to the information listed above, the following information shall be provided:
- The complete address of the entrepreneur's establishment and the telephone number, fax number and email, when applicable, with the purpose of allowing the consumer to contact and communicate with them swiftly and efficiently, as well as, when applicable, the complete address and identity of the entrepreneur on which behalf they act.
- The cost for using the distance communication technique to conclude the contract, if such cost is calculated on a different basis than a basic tariff.
- The language or languages in which the contract may be concluded, when it is not the language in which the information was offered previously to concluding the contract.
- When a withdrawal right procedure exists, the conditions, deadline and procedures to exercise this right, as well as the withdrawal form.
- When applicable, the indication that the consumer shall have to bear with the cost of returning the products in case of withdrawal and, when the products, due to their nature, may not be returned normally by courier, the cost of their return.
- When, according to the regulations, the right of withdrawal does not apply, the indication that the consumer is not entitled to this right, or the circumstances under which the consumer shall lose this right when entitled to it.
- A reminder of the existence of a legal warranty of the conformity of the products.
- When applicable, the existence of after-sales assistance to the consumer, after-sales services and commercial warranties, as well as their conditions.
- The existence of relevant codes of conducts and the procedure to obtain copies of the same, if applicable.
- The duration of the contract, when applicable, or the conditions for the termination of the contract if its duration is indefinite or subject to automatic extensions.
- When applicable, the minimum duration of the consumer's obligations derived from the contract.
- When applicable, the existence and conditions of the deposit or other financial warranties which the consumer shall pay or provide at the entrepreneur's request.
- When applicable, the functionality of the digital contents, including the applicable security technical measures.
- When applicable, all relevant interoperability of the digital content with the apparatus and programs known by the entrepreneur or that the entrepreneur is reasonably expected to know.
- When applicable, the existence of an extrajudicial mechanism for claims and compensations to which the entrepreneur is subject and the methods to have access to them.
Regarding private agreements, written form is not required except for those cases provided for in the specific regulations.
As for agreements entered into with consumers, written form is required.
In those cases where the entrepreneur contracts the consumer by telephone in order to conclude a distance contract, they shall provide the consumer with a confirmation in writing or, except when the consumer opposes it, in any medium of a durable nature. The consumer shall only be bound once they have accepted the offer by their signature or by sending their agreement in writing which, among other mediums, may be done in paper, email, fax or sms.
2. Examples for legal statements and contracts where written form is required
Although the general rule is the freedom of form, there are certain cases in which written form is required, such as the following:
- Consumer credit agreements;
- Consumer agreements in general;
- Employment agreements;
- Certain Banking agreements;
- Surface agreements and Lease agreements subject the Lease Spanish Act (Buildings)
According to the civil code when the following require written form it also requires to be granted before public notary:
- agreements related to creation, transmission, modification or cancellation of rights in rem over real estate assets;
- lease agreements of more than 6 years duration;
- general power of attorneys;
- assignment of rights and actions arising from an act established in a public deed.
3. Are there special legal provisions for digital archiving and storage of electronic documents? If yes, please describe them
There are no specific provisions regarding digital archiving and storage of electronic documents in Spain. There are, however, some regulations which should be observed when archiving documentation of any sort.
In this regard, according to the data protection regulations, appropriate technical and organisational measures should be implemented in order to ensure the protection of the personal information contained therein. Failure to do so shall result in very severe penalties in severe cases.
Moreover, there are other regulations, such as tax and money laundering related, which provide for minimum archiving terms regarding certain documentation (i.e., money laundering regulations lay down a term fo 10 years for certain documents).
Cybersecurity regulations also impose certain requirements regarding the security of the information upon companies which carry out certain essential services.
4. Main and relevant court practices
According to the Spanish case-law on this matter, the simple, advanced and qualified e-signatures have the same legal validity.
Thus, 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 of 1) data in electronic form linked to or logically linked with other electronic data; 2) is used as a means of authentication. According to the courts, in short, an e- signature will be any data that can be associated with a contract/legal statement.
However, if a legal statement (for which written form is required) is intended to be used as evidence in a legal proceeding and it is signed with a qualified e-signature it will be presumed to be valid. However, if it is signed with an advanced or simple e-signature, its validity must be proven by the parties concerned. This is known as "iuris tantum" evidence, which allows all the concerned parties to prove (or not) the validity of the electronic signature.
5. In which cases are documents only with wet ink signatures accepted?
In accordance with the Spanish regulations, qualified electronic signatures have the same validity as handwritten wet ink signatures, in all forms of contractual relationship. Consequently, there cannot be any cases in which only wet ink is accepted.
6. List of the relevant national legislation
- Royal Legislative Decree 1/2007, of 16 November, approving the consolidated text of the Consumers and Users Protection and other complementary regulations Act;
- Act 34/2002, of 11 July, on information society services and e-commerce;
- Civil Code;
- Code of Commerce;
- Act 59/2003, of 19 December, on electronic signature;
- Regulations on cybersecurity;
- Decree of 2 June 1944 approving definitely the Regulation on the organisation and regime of Notaries.
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, according to art. 3.4. of the Spanish Electronic Signature Act 59/2003 ("ESA"). This signature is equal to a handwritten signature and has the same binding force. |
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2. Electronic document signed with qualified electronic signature (QES as defined in the eIDAS Regulation) without a time stamp | Yes, according to art. 3.4. of the ESA. This signature is equal to a handwritten signature and has the same binding force, whether it has a time stamp or not (except in legal statements to be submitted before Public authorities). |
3. Electronic document signed with advanced electronic signature (AdES as defined in the eIDAS Regulation) and with a time stamp | Yes, according to art. 3.4. of the Spanish Electronic Signature Act 59/2003 ("ESA"). This signature has the same binding effect, however parties may discussed the authenticity of the signature, and provide evidence before a Court. Obviously, the sort of evidence needed to detroy an AdES should be stronger than that need against a simple electronic signature. |
4. Electronic document signed with advanced electronic signature (AdES as defined in the eIDAS Regulation) without a time stamp | Yes, according to art. 3.4. of the Spanish Electronic Signature Act 59/2003 ("ESA"). This signature has the same binding effect, however parties may discuss the authenticity of the signature, and provide evidences before a Court. Obviously, the sort of evidence needed against an AdES without a time stamp should be stronger than that needed against an AdES with a time stamp. |
5. Electronic document signed with advanced biometric signature | Yes. The ESA does not differentiate between adavanced biometric signatures and AdEs. The use of advanced biometic signatures does not jeopardize the legality and binding character of the content of the e-document. However,the parties to such document may challenge that the signature was provided by the actual signee (depending on the circumtansces, this may be a criminal offence and would end in finding that the document does not bind the parties). |
6. Electronic document signed with a simple, standard electronic signature (SES) | Yes. The ESA does not differentiate between adavanced biometric signatures and AdEs. The use of advanced biometic signatures does not jeopardize the legality and binding character of the content of the e-document. However parties to that document may challenge that the signature was provided by the actual signee, in an more simplistic way than advanced biometric, AdES or QES. Moreover, depending on the circumtansces, this may be a criminal offence and would lead to a finding that the document does not bind the parties. |
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. This signature may be considered as a SES. The content of the document shall still be fully binding on the parties, unless one of the parties challenges the authenticity and/or integrity of the signature together with the proper evidence also challenging the email sender. |
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. This signature may be considered as a SES. The content of the document shall still be fully binding on the parties, unless one of the parties challenges the authenticity and/or integrity of the signature together with a proper and sufficient evidence challenging also the email sender. |
9. Legal statement sent in an SMS | Yes. This signature may be considered as a SES. The content of the SMS shall still be fully binding on the parties, unless one of the parties challenges the authenticity and/or integrity of the identity of the SMS sender by providing proper and sufficient evidence. |
10. Electronic document with a copy-pasted image of a handwritten signature, sent as an attachment of an ordinary e-mail | Yes. This signature may be considered as a SES. The content of the document shall still be fully binding on the parties, unless one of the parties challenges the authenticity and/or integrity of the signature by filing proper and sufficient evidence challenging (i) the email sender and/or (ii) the attachment. |
11. Electronic document with the typed name of the signer and sent as an e-mail attachment | Yes. This signature may be considered as a SES. The content of the document shall still be fully binding on the parties, unless one of the parties challenges the authenticity and/or integrity of the authorship of the document by filing proper and sufficient evidence challenging (i) the email sender and/or (ii) the attachment. |
12. Electronic legal statement sent in a social-media message sending application (e.g. Messenger, Viber, LinkedIn, Facebook message, etc.) | Yes. This might have equivalent effects to a SES. The content of the social-media message shall still be fully binding on the parties, unless one of the parties challenges the authenticity and/or integrity of the identity of social -media user by providing proper and sufficient evidence challenging the identity of the social-media user and/or authorship of the message. |
13. Electronic legal statement sent in a chat application | Yes. This might have equivalent effect to a SES. The content of the social-media message shall still be fully binding on the parties, unless one of the parties challenges the authenticity and/or integrity of the identity of chat app user by providing proper and sufficient evidence challenging the identity of the chat app user and/or authorship of the message. |
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 | Yes. This might have equivalent effect to a SES. The content of the document shall be fully binding on the parties, unless one of the parties challenges the autheticity and/or integrity of the identity of platform user by providing proper and sufficient evidence challenging the identity of the platform user. The fact that the platform has been established as system for users to access the platform should be considered when assesing the evidence provided. |
15. Electronic document signed in DocuSign/Adobe Sign with a simple standard electronic signature (no QES or AdES) | Yes. This signature may be considered as a SES. The content of the document shall be fully binding on the parties, unless one of the parties challenges the autheticity and/or integrity of the signature by filing proper and sufficient evidence challenging the identity of the parties to the document. |
16. Electronic document signed with a qualified electronic seal as defined in the eIDAS Regulation | Yes. This document is fully binding on the parties, and according to the law it has full recognition of validity and integrity, therefore a court should consider it as a iuris et de iure evidence. |
17. Agreements accepted by the other party online, by ticking a checkbox or by clicking on a button ("click on agreements") | Yes. This might have equivalent effects to a SES. The content of the agreement shall be fully binding on the parties, unless one of the parties challenges the authenticity and/or integrity of the identity of the signing party by providing proper and sufficient evidence challenging the identity of the signee. |
