Electronic contracts with digital signature are recent legal deals, that still come with many doubts, especially regarding the need for signature of witnesses.
Pursuant to Article 784, III of the Code of Civil Procedure, for an enforcement order to have an extrajudicial nature, the contract (or private instrument) must be signed by the parties and by two witnesses.
The presence of witnesses in contracts is common practice and is required to prove the authenticity of the contracting parties, as well as to ensure that the contract has been concluded spontaneously, free from any vice or constraint.
Who are the witnesses?
The witnesses are individuals who through their signature manifest presence at the time of formalization of a legal business, ensuring the absence of external threats or pressures. Elected witnesses may not have a financial interest in the given business and must be civilly capable. The absence of witnesses does not invalidate the contract. However, only contracts containing the signature of two witnesses may be executed in court more quickly.
What is a digital signature?
A digital signature is a type of electronic signature that uses encryption and electronic means as a form of validation. Its safety comes from a double conference system, as it uses both a private key and a public one to provide authenticity to the signature. Usually, the electronic signature is done through a digital certificate (“certificado digital”). Another form of signing in virtual environment is the electronic signature, which is less secure, as it can be confirmed only by typing (bank password, for example).
Need for witnesses in electronic contracts
In Brazil, there is still no law dealing specifically with the signatures in electronic contracts. By way of comparison, in the United States digital signatures have been provided for in federal law since 2000.
In a recent decision, the STJ recognized that the electronic contract signed with digital certificate without witnesses can be enforced via judicial enforcement action. The decision occurred in isolation and is justified by the fact that the electronic signature had certification of the ICP/Brazil and the burden of proof on the validity of the contract signed by electronic certification is of those who distrust the nullity. This was one of the first decisions to validate the possibility of proposing a lawsuit based on a particular instrument without the signature of two witnesses. In this case, the Minister Rapporteur stated that due to the particularities of the electronic contract (conclusion at a distance and electronically) this does not bring the indication of witnesses, which does not prevent it from being executed.
Conclusion
So far there is no consensus on the subject because the Civil Code and the Code of Civil Procedure have not yet adapted to the technological innovations and to the reality of business environments.
Thus, until this understanding is consolidated, we suggest that digital signatures of witnesses be always collected in contracts concluded electronically. After all, the general rule still in force is that of the Code of Civil Procedure (CPC). However, it is important to remember that the absence of the signatures of two witnesses does not invalidate the business, and can only hinder a judicial execution.
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This is an informative article and does not amount to a legal or financial consultation.
