For obvious reasons, remote signing of contracts has assumed great significance recently. To conclude a contract, is it sufficient to exchange a few emails or to transmit electronically signed documents? It depends.
Whether remote conclusion of a given contract is possible and will be fully effective must be determined separately for each contract, taking into account the planned method for conclusion of the contract, the type of contract, and the subject matter and content of the contract. But the legal requirements calling for compliance with a certain form of legal act will be of the greatest importance.
Freedom of form
The baseline rule for selection of the form for a contract is freedom of form. Subject to exceptions provided for by law, a contract may be concluded in any form, including electronically. Thus, generally, a contract need not be made in writing. An oral contract is also a contract, although for evidentiary reasons it is considered standard to conclude contracts in writing.
Clearly, the law introduces many important exceptions to this rule, making it necessary to comply with special forms for various types of contracts. The regulations also provide for various consequences of failure to comply with a specific form when it is required. Establishment of such requirements is justified by the need to ensure security and certainty in legal dealings, the need to document certain transactions, and a desire to protect parties taking certain legal actions against hasty decisions.
Special forms for legal transactions
The general section of the Polish Civil Code recognises six special forms for legal acts:
- Notarial deed
- Written form with notarised signatures
- Written form with a date certain
- Written form
- Electronic form
- Document form.
But specific regulations indicate when it is necessary to comply with a particular special form for a certain type of contract to be valid, or for example to exert certain effects provided for in the contract. The parties can also agree to impose a similar requirement.
Complying with the first three of these forms generally involves an official element, with the involvement of a notary or state official. Remote conclusion of contracts requiring compliance with such forms may therefore prove difficult if not impossible.
Remote conclusion of contracts may thus come into play for the other three special forms: written, electronic, and document form.
To comply with written form for a given contract, it is necessary to place a handwritten signature on a document that includes the content of the contract. The requirement for the signature to be handwritten means that in this case, a stamp with a specimen of the signature (known as a facsimile signature) cannot be used, nor a scan or other copy of the signature.
It should also be stressed that if the contract is to be concluded in compliance with written form, the signatures of the persons concluding it (or persons representing the parties to the contract) need not be placed on the same original of the contract. It is sufficient for each signatory to sign their own counterpart of the contract. Obviously, exchange of the signed counterparts of the contract has great evidentiary importance, and thus when concluding a contract in this manner the parties should ensure that each party receives the counterpart signed by the other party to the contract.
Electronic form for purposes of the civil law differs from the common understanding of this term. In ordinary usage, electronic form typically means an exchange of email correspondence, confirmation of the content of the contract in an email.
Under the civil law, conclusion of a contract in electronic form requires submission of a statement of will in electronic form, affixing to it a qualified electronic signature. In practice this usually means signing of a file in the appropriate format (such as PDF) with the qualified e-signature of the signatory. Because the specific e-signature is assigned to a specific person, it is treated as a substitute for a handwritten signature. Here the key notion is “qualified electronic signature.” With some oversimplification, it may be said that a qualified electronic signature is a signature which:
- Constitutes data in electronic form which are annexed to or logically connected with other data in electronic form and used by the signatory as a signature
- Is uniquely assigned to the signatory
- Enables identification of the signatory
- Is submitted using data for making an electronic signature, which with great certainty can be used only by the signatory, under his exclusive control
- Is linked to the signed data so that any subsequent change in the data can be recognised, and
- Is submitted using a qualified device for submitting an electronic signature and based on a qualified certificate of the electronic signature—a certificate issued by a qualified provider of trust services.
This means that not every electronic signature enables submission of a statement of will in electronic form. The possibility and effectiveness of using an electronic signature obtained abroad should be assessed with particular care.
Signing of a contract in electronic form, i.e. with a qualified electronic signature, is equivalent in its effects to signing of a contract in written form (with a handwritten signature). This means that if written form is needed for a given contract, it is sufficient to conclude the contract in electronic form (signing of the file with a qualified e-signature).
This form was introduced into the Polish legal system relatively recently. To comply with document form for a legal act, it is sufficient to submit a statement of will in the form of a document in a manner enabling identification of the person making the statement. A document, in turn, is a carrier of information enabling examination of the content of the information.
Examples that may be regarded as statements made in document form include messages sent by email, documents bearing a non-handwritten (facsimile) signature, documents signed with an unqualified electronic signature, or documents signed using a trusted profile in the ePUAP system.
Thus in practice a contract is concluded in document form when the parties establish its terms through an exchange of emails or messages via other internet messaging services, or when they sign the file containing the terms of the contract with a trusted profile (ePUAP).
Can a specific contract be signed remotely?
To answer this question, the following table may be helpful:
Conclusion of a contract in an inappropriate form may generate various legal consequences, from the invalidity of the contract, to failure to achieve some of the intended effects of the contract, or evidentiary difficulties in the event of a dispute. In practice, there are several other means used to facilitate transactions, but their safety for the parties and effectiveness must always be assessed in light of the general rules discussed above and the given situation.
Martyna Robakowska, Bartosz Kuraś, attorney-at-law, Izabela Zielińska-Barłożek, attorney-at-law, M&A and Corporate practice, Wardyński & Partners