For those of you who are led to sign documents regularly, homeworking does not spell the death of the signed contract. However, you do have to think carefully about the solution you use for signing electronically: not all electronic signatures are equal in the eyes of the law.
Within the European Union, we have an EU Regulation that makes a distinction between three kinds of electronic signatures:
- standard "electronic signatures" (called "SES" - e.g. the average e-mail signature, a photo or scan of your handwritten signature that you attach to a PDF, etc.);
- "advanced electronic signatures" ("AES" - an AES is an SES with a number of additional guarantees regarding the identification of the signatory and the immutability of the signed content, and the one most people use constantly is the token generated on their bank card reader when signing bank transactions);
- "qualified electronic signatures" ("QES" - this is an AES with even more guarantees, such as the involvement of a trusted third party, a certification authority, to reinforce the link between the signature and a natural person).
Under these EU-wide rules, a QES automatically has the same legal effect as a handwritten signature. It is therefore a great way to sign contracts if the signatories all have a QES at their disposal.
A number of EU countries have their own State-sponsored QES methods (e.g. Belgium has the eID signature method, but also itsme and even the LawyerID that your lawyers have; other countries with official, national QES methods include Austria, Estonia, Finland, Germany, Luxembourg, Portugal, Spain, ...). However, this still leaves large gaps, with many EU countries that do not have a local QES method (e.g. France, UK), and even more countries worldwide. As a result, not all signatories will always have a QES at their disposal (e.g. France does not yet have a nationwide QES). In other words, for many documents or contracts, you cannot rely on QES methods alone.
In this context, what should you do?
For entirely new contracts, the "best" solution is either wet ink (i.e. a handwritten signature, on paper) or a QES, where available. Are you signing with someone who does not have a QES method available? Try to find a way to give each other additional assurances to create trust, in order to help you answer these two key questions:
- How do you know (with a reasonable degree of certainty) that the intended signatory was the person who signed?
- Can you prove that the content of the document was unchanged after signing?
Examples of such measures include extensive customer identification, sharing scans of signed documents and each sending one signed original to the other by courier or regular mail. This will not be as hassle-free as a QES, but it might help limit your legal risks.
If you already have an existing framework contract, check whether it includes a mechanism that allows you to make changes or orders without a handwritten signature. For instance, it may be that your framework agreement allows you and your contracting party to agree to modifications by simple exchange of e-mails. If it doesn't provide for anything, follow the above recommendations regarding new contracts.
What if this all sounds too complex? Except for specific situations (e.g. agreements affecting the ownership of real estate, employment agreements, etc.), no rules prevent you from embedding a scanned signature into a PDF of the agreement, or even confirming in an e-mail chain that both parties agree. However, be aware that the enforceability of that agreement could be brought into question, and you may have to use various means of evidence to prove that the other party actually signed the agreement (who signed it, but also what exactly was signed).
In other words, it all boils down to trust. If you trust the other signatory already, a simple exchange of e-mails or a PDF-embedded scan of a signature might suffice - but for strategic or important contracts, get a confirmation through a more easily enforceable signature (or ensure that when you meet face-to-face once more after a coronavirus lockdown period, you exchange a hardcopy version). If not, try to take a few extra precautions - after all, it's the key theme for these coming weeks.
If you have questions about an e-signature solution you are contemplating, get in touch!
