The Sentence of the Provincial Court of Barcelona of the 17th of April 2024 (Appeal 858/2023) involved a case in which, in the first instance, a claim filed by CAIXABANK against a borrower (natural person) who was ordered by the court to pay a principal of 5,785.73 Euros in respect of a loan agreement was upheld.
The borrower appealed against the court order on the grounds that the contract was never actually entered into. Allegedly, the identity of the signing party was not accredited, since neither the mobile number of the device which was used to sign the document, nor the e-mail to which it was sent, were authenticated.
The Court was told that the contract had been signed electronically, given that an independent, third-party certificate (LOGALTY) accrediting the signature and identity of the intervening parties was on record. It was also considered that:
- The complete legal efficacy of contracts signed electronically must be recognised – that is, those contracts whose offer and acceptance are transmitted via electronic equipment apt for the processing and storing of data connected to a network.
- The complete validity of electronic signatures must be recognised, in accordance with article 3 of Law 59/2003 of the 19th of December, which defines a recognised electronic signature as an advanced electronic signature based on a recognised certificate and generated via a secure mechanism for the creation of signatures.
- A recognised electronic signature holds the same value, in respect of the electronically recorded data, as a handwritten signature, in respect of the data recorded on paper. To be recognised, the signature must be based on a registered certificate authorised by the Ministry for the creation of this type of signatures and included in the list published on its website.
- Article 6 of Law 22/2007 of 11th of July on the Commercialisation of Financial Services, establishes that there must be documentary proof in a lasting format of the offer and signing of the contract. This documentary proof is understood as any instrument that permits the consumer to store information which has been personally sent to them, in such a way that they may easily recover said information within an appropriate period of time for the purposes to which the information is aimed and which permits the unedited reproduction of the stored information.
- Article 24 of Law 34/2002 of the 11th of July, on Company Information Services, indicates that the evidence of the contracts signed electronically shall be subject to the general legal rules and when they are signed electronically, then article 3 of Law 59/2003 shall be applied.
- Article 25 of Law 34/2002 introduced the concept of the trusted third party, envisaging that parties will be able to agree that a third party files the declarations of intent which electronic contracts integrate, and that the third party records the date and time on which said communications took place. Its intervention can not alter nor substitute the functions of the people authorised to publicly certify in accordance with the law.
In short, the Court recognised that:
- The claimant would have accompanied a loan agreement with its claim, in which electronic, remote contracting was envisaged, and
- That a trusted third-party service provider (LOGALTY) would have issued a certificate of electronic contracting accrediting:
- The signature of the contracting parties;
- The integrity of its content;
- That the contract was signed via a PIN provided via text message sent to the mobile telephone generating a verification code.
- That the certifying entity was a trusted electronic services provider.
Furthermore, it considered that the appellant:
- Could not introduce, in the second instance, new issues not introduced in the first instance (such as the challenge of the authenticity of the electronic signature).
- Could not allege, without proof, that their personal data could be in the possession of third parties, since presumably, if they were in the plaintiff’s possession, it would have been the appellant who provided them to the plaintiff.
- Did not deny having received the loan or the pre-contractual documentation.
- Accepted that the loan repayment instalments would be debited to their bank account.
On the other hand, the Judgment of the Provincial Court of Lérida of 29th January 2021 (Appeal 158/2020), dismissed the claim, due to the absence of an electronic signature based on a recognised certificate, in a case which went as follows:
- Sending of the loan agreement to an e-mail address;
- Manual signature (via DocuSign);
- Return to the sender without certification as to who had signed it, since the signature was manually autographed and was not based on any personal digital signature certificate.
In conclusion, in order to avoid an electronic document being challenged for lack of authenticity and/or integrity, it is essential to use a recognised or advanced electronic signature system, based on a recognised certificate and generated by means of a secure signature creation device.
Mireia Bosch
Vilá Abogados
For more information, please contact:
9th August 2024
