The electronic signature and the (new) Belgian law of evidence (part 3)
Application in common contract law
This section discusses the use of electronic signatures in a number of specific agreements. It considers which electronic signature would suffice for the validity requirements of the agreement. A distinction is made between those agreements for which an ordinary electronic signature is sufficient, and those that require a qualified electronic signature.
- Ordinary electronic signature
Bail (Art. 2011 Old Civil Code) is a consensual contract, for which the law does not impose any special formal requirements (i.e. no requirement of writing). Art. 2015 BW merely stipulates that the bail must have been expressly entered into.
The proof of a unilateral bail (where only one party bears obligations) requires that the bail contains the signature of the person (i), as well as the indication of the sum in letters for which amount the surety is given (ii). A specific formality regarding the (electronic) signature is not required. A private deed can therefore suffice.
However, case law requires in many cases to request written proof of the existence of the surety, in order to meet the strict conditions signature (M. DAMBRE, Handboek bijzondere overeenkomsten, Brugge, die Keure / la Charte, 2020, 593-618).
Given the above, it therefore follows that an ordinary electronic signature may in principle suffice, but with the caveat that it is not automatically equated with a handwritten signature and will be judged sovereignly by the court.
A mandate agreement is also a consensual agreement and subject to the common law rules of evidence. Consequently, in transactions exceeding the value of 3,500 euros, the principal and the trustee must, at least in civil cases, conform to Article 8.9 of the Civil Code.
To prove the existence of the mandate agreement, a writing must be presented. The concrete content of the mandate may be proved by the contracting parties by any means of law (A.L. VERBEKE en B. TILLEMAN, Bijzondere overeenkomsten in kort bestek (negende herwerkte editie), Mortsel, Intersentia, 2020, 304).
Consequently, it follows that an ordinary electronic signature can in principle suffice as proof of the existence of a mandate and its content, with the caveat that it is not automatically assimilated to a handwritten signature and judged sovereignly by the court.
- Rental agreement for movable property
Rental agreements can be concluded electronically, i.e. signed with a digital signature (R. TIMMERMANS, Inleiding tot het Vlaams Woninghuurdecreet in Recht en Praktijk, Mechelen, Wolters Kluwer, 2019, 37; J. MEERTS, “Algemene bepalingen” in Praktijkgids Huur, Mechelen, Wolters Kluwer, losbl., 2022, I.1-1 - I.1-18).
For the rental of movable property, there is no legal requirement as to whether or not a writing is necessary. Consequently, the parties may prove the existence and content by any means.
Consequently, an ordinary electronic signature may suffice for the validity of the signature, but with the understanding that it is not automatically equated with a handwritten signature and will be judged sovereignly by the court.
- Qualified electronic signature
Employment contracts, on the other hand, are subject to a specific requirement of writing. In addition, the Belgian Employment Contracts Act provides that an employment contract can only be signed by means of a qualified electronic signature.
However, neither the employee nor the employer can be obliged to conclude the contract electronically (artikel 3bis van de Arbeidsovereenkomstenwet ; K. DIEU en T. SMETS, “Een stand van zaken van de elektronische handtekening in het arbeidsrecht”, Oriëntatie 2021 Afl. 10, 299).
It follows from the above that there are basically three categories of signatures to choose from (ordinary, advanced or qualified signature), of which only the qualified signature is automatically equated with a handwritten signature and has legal probative value.
The other two signatures will not be automatically equated and will be sovereignly assessed by the courts. They will, however, be given the same legal effect as a handwritten or qualified signature if the judge judges them to be sufficiently reliable.
Nevertheless, each type of agreement does require an evaluation of whether there are legal requirements for signature. Higher, we explained that for surety, charge, rental agreements an ordinary electronic signature may suffice, whereby contrast for employment contracts a qualified electronic signature is required to prove the existence and content of the agreement.