08 Nov What is the legal validity of electronic signatures in Spain?
By signing through electronic means, we are able to formalize documents and contracts remotely and in an efficient way. Furthermore, we reduce costs and minimize the time spent on trips and shipments. But, what is the legal validity of the so-called electronic signature?
The electronic signature allows us to subscribe documents and contracts remotely and in an efficient way, because we reduce costs and minimize the time spent on trips and shipments. However, what is the legal validity of the so-called electronic signature?
The Spanish Civil Code, in its article 1.261, lists the three essential elements for the validity of contracts: consent, object and cause. The key in this matter is consent, which the Civil Code (article 1262) considers is expressed by the tendering of the offer and the acceptance on the object and cause that are to constitute the contract. Article 1258 also establishes that the mere consent concludes contracts. In other words, for the validity of a contract, it is not necessary to have a handwritten signature, but to demonstrate the will of the contracting parties to the contract.
Law 59/2003 of 19 December on electronic signatures, and Regulation (EU) No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for economic transactions in the internal market, both regulate the electronic signature as such. The regulation distinguishes three categories of signatures:
- Simple electronic signature is the set of data in electronic form, which can be used as a mean of identification of the signatory.
- Advanced electronic signature is an electronic signature that enables to identify the signatory and detect any subsequent change in the signed data. The signature links to the signatory and to the data to which it refers. In addition, it has been created by means that the signatory can use with a high level of confidence, under his/her exclusive control.
- Recognized electronic signature is the advanced electronic signature based on a certificate that is expressly recognized by the Ministry of Industry and Commerce and must be generated by a secure signature creation device.
A recognized electronic signature shall have -regarding the data in electronic form- the same value as a handwritten signature – regarding the data in paper form-. Furthermore, legal effects shall not be denied to an electronic signature that does not meet the requirements for a qualified electronic signature in relation to the data with which it is associated, solely because it is presented in electronic form.
Thus, documents with electronic signatures will have the legal value and effectiveness that corresponds to their respective nature.