"Simple" Electronic Signature, Certified Electronic Signature, And Scanned Signature In Contracts

• Published date: 30 December 2020
• Subject Matter: Corporate/Commercial Law, Strategy, Coronavirus (COVID-19), Contracts and Commercial Law, Technology, Operational Impacts and Strategy
• Law Firm: CorralRosales
• Author: Mr Mario Fern'ndez

The COVID-19 pandemic has forced companies to adapt to the digital age through the use of Information Technologies (TIC's) to guarantee the continuity of their operations, such as contract signing. The electronic signature has gained particular importance as a useful tool to avoid the parties' physical concurrence when entering a contract. Also, it streamlines the process and improves document management.

Some people may confuse the electronic signature with the handwritten signature scanned and embedded in an electronic document; also, the electronic signature certified by an accredited local entity should not be confused with one that does not have said certification.

This article analyzes the "simple" electronic signature, the certified electronic signature, and the scanned signature to differentiate them and determine the contract's legal effects.

For the analysis, we assume a contract between private parties that is not subject to any solemnity.

1. "Simple" electronic signature and certified electronic signature

The electronic signature is regulated by the Law of Electronic Commerce, Signatures and Data Messages (hereinafter, "LCE"). It defines it as: "[...] the data in electronic form consigned in a data message, attached or logically associated with it, and that can be used to identify the owner of the signature with the data message, and indicate that the owner of the signature approves and acknowledges the information contained in the data message. "¹

According to article 15 of the LCE, the electronic signature must meet the following requirements for its validity:

" a) Be individual and be linked exclusively to its owner;

b) That allows to verify the authorship and identity of the signatory unequivocally, through technical verification devices established by this law and its regulations;

c) That its method of creation and verification is reliable, safe and unalterable for the purpose for which the message was generated or communicated;

d ) That at the time of the creation of the electronic signature, the data with which it is created is under the exclusive control of the signatory, and,

e) That the signature is controlled by the person to whom it belongs. "²

The electronic signature has the same validity and legal effects recognized in a handwritten signature (or physical signature).

The LCE does not use the denomination digital signature and electronic signature like in other countries to differentiate the electronic signature certified by an...