Use Of Electronic Signature For Commercial Transactions In Mexico

• Published date: 25 June 2020
• Subject Matter: Corporate/Commercial Law, Corporate and Company Law, Contracts and Commercial Law
• Law Firm: Mayer Brown
• Author: Mr Raúl Fern'ndez-Brise'o, Lilia Alonzo and Aldo A. J'uregui

We recently published an article regarding certain alternatives to traditional methods for signing commercial documents and closing business transactions on a remote basis (primarily due to the pandemic caused by COVID-19). We discussed the validity of electronic signatures, the different types of such signatures and their admissibility as evidence. Below we analyze these topics in more depth and discuss additional related matters, such as the possibility of setting a Certain Date (Fecha Cierta) to documents through an electronic signature with a digital time stamp.

I. Valid to Express Consent

In accordance with Mexican law, the use of electronic signatures is a valid way to express consent for the execution of contracts. Specifically, the Federal Civil Code (Código Civil Federal) provides that consent will be express when it is manifested, among others, by electronic, optical or any other type of technology. In cases in which it is required that the consent be in writing, such requirement will be considered fulfilled when the electronic information is attributable to the obligated persons and can be subsequently consulted.⁴ The foregoing is endorsed by the Commercial Code (Código de Comercio).⁵

Principles of Interpretation

The Commercial Code provides that electronic commerce (e-commerce) will be interpreted and applied in accordance with the following guiding principles:⁶

• Technological neutrality: the technology used for the issuance of digital certificates and for the provision of services related to the electronic signature shall be applied in such a way that does not exclude, restrict or favor any particular technology;⁷

• Will autonomy: to the extent permitted by the applicable regulations, the parties shall be free to contract and express their consent in the way they agree;⁸

• International compatibility: recognized international standards and criteria shall be used;⁹ and

• Functional equivalence: the electronic signature on a data message shall satisfy the signature requirement in the same way as the wet signature on a printed document if it has the same level of reliability).¹⁰

These principles of interpretation are relevant to determine the way in which the electronic signature must be interpreted for legal purposes in commercial matters when used instead of a wet signature.

II. Types of Electronic Signature

In line with the international trend, the Commercial Code identifies three types of electronic signatures:

1. Simple electronic signature: the data in electronic form recorded by any technology in a data message, which indicates that the signatory approves the information contained in such data message.¹¹

Common examples of this type of signature are digital wet signatures and personal identification numbers (PIN) used to authorize charges to a credit card. The use of biometric factors (fingerprint, voice or facial identifiers, among others) could also fall into this category.

2. Advanced or reliable electronic signature: one that meets at least the...