Electronic Signature: when can it be used and when not?


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The pandemic revealed a great need to perform acts and contracts remotely, avoiding having to meet to sign the instruments or appear before a notary. This increased doubts about the regulation of electronic signatures, especially to understand under what circumstances it can be used and when it cannot.

In this article we briefly explain: (i) how the electronic signature is regulated in Chile; (ii) what acts can and cannot be celebrated through it; (iii) the bill that seeks to expand the number of acts that can be celebrated with an electronic signature and (iv) proposals for changes to the project to extend the usefulness of the electronic signature.

REGULATION OF THE ELECTRONIC SIGNATURE IN CHILE

The electronic signature is regulated by Law No. 19,799 on electronic documents, electronic signature and certification services for said signature (“ LFE ”), and its Regulations. [1]

1.1. Principle of equivalence between electronic and paper documents. As a general rule, the acts and contracts signed by means of electronic signature are valid in the same way and produce the same effects as those signed in writing and on paper. For all legal purposes, these acts and contracts will be considered as written and their signature will be regarded as a handwritten signature, whatever its nature.

1.2. Types of electronic signature. The LFE recognizes two types of signatures, the simple electronic signature (“ FES ”) and the advanced electronic signature (“ FEA ”).

(i) Simple electronic signature . A simple electronic signature constitutes ” any kind of sound, symbol or electronic process that allows the recipient of an electronic document [2] to identify, at least formally, its author “. [3]

Therefore, they can be a FES: the incorporation of a person’s name at the end of an email or even the mere act of sending that email from their personal mailbox; the scanned image of a handwritten signature embedded at the end of an electronic document; a biometric medium (eg fingerprint); the marking of a checkbox in an electronic form; or other electronic processes that allow the identification, at least formal, of the author of an electronic document. A mechanism that is not compatible with the concept of an electronic document could not be considered a simple electronic signature.

By virtue of the principle of equivalence of the medium, a contract signed by FES will have the same legal value as a contract signed with a handwritten signature.

(II) Advanced electronic signature An advanced electronic signature is that signature « certified by an accredited provider and that has been created using means that the holder maintains under his exclusive control, so that it is linked only to himself and to the data to which he refers, allowing subsequent detection of any modification, verifying the identity of the holder and preventing him from ignoring the integrity of the document and its authorship ”. [4]

The Undersecretariat of Economy and Smaller Companies, through the Accrediting Entity,  is in charge of accrediting the providers of the advanced electronic signature certification service and keeping the updated registry of those. [5]

1.3 Restrictions on the use of electronic signature. The general rule is that the simple and advanced electronic signature can be used interchangeably to celebrate all kinds of acts and contracts, except the following:

a) FES cannot be used when the law expressly requires the use of FEA, for example:

i) Public instruments in electronic format must bear the FEA of the official who issues them: an authorized electronic copy of a public deed must have the FEA of the notary who authorizes it; A certificate from the Civil Registry must have the FEA of the official who issues it, etc.
ii) The court order issued in an electronic document must be signed with the FEA of the principal.
iii) The forms for the constitution, modification, dissolution or annotations of companies in the Companies and Society Registry must be signed with the FEA of the constituents, partners or shareholders; or with the FEA of the notary who authorizes the act if they do not have their own FEA.

b) Electronic signature (FES or FEA) cannot be used when the LFE or other laws prevent the use of electronic signature:

i) When the law requires a solemnity that cannot be fulfilled by electronic document
ii) When the law requires the personal concurrence of any of the parties
iii) In acts and contracts related to family law

PRACTICAL APPLICATION OF THE ABOVE RULES

2.1 Acts that require a public deed cannot be executed with an electronic signature

The acts for which the law requires the solemnity of a public deed (for example, the sale of real estate or easements [6] or the constitution of mortgages [7] ) cannot be executed by electronic signature, neither FEA nor FES, since This solemnity is not capable of being fulfilled by electronic document, as it is deduced from articles 403 et seq. of the COT.

According to those regulations, the execution of a public deed requires: (i) the personal concurrence of the parties before the notary (art. 405) and (ii) the fulfillment of a series of formalities that are incompatible with the notion of signature and document electronic [8] .

Articles 4 and 5 number 2 of the LFE usually generate confusion in this matter: Article 4 provides that ” electronic documents that have the quality of public instrument, must be signed by means of an advanced electronic signature .” Due to its concise wording, this provision could lead to the erroneous idea that a public instrument – such as a public deed – could be generated directly by the contracting parties if they celebrate it using their advanced electronic signature. But that conclusion is not correct.

To understand the true meaning of this rule we must bear in mind the definition of “public instrument” in art. 1699 of the Civil Code:

«Public or authentic instrument is the one authorized with the legal solemnities by the competent official .

Issued before a notary public and incorporated into a protocol or public record, it is called a public deed.

As can be seen, the public instrument is always authorized by “the competent official”, which in the case of the public deed is the notary. As much as individuals sign their private documents with an advanced electronic signature, they will not be able to give it the quality of a public instrument, since that can only be done by the official who has the legal powers to authorize it (for example, the Civil Registry and Conservators of Real Estate are invested with the powers to issue certain certificates in the sphere of their powers; notaries can authorize copies of public deeds, etc.). The meaning of this rule, then, is that those officials are forced to use FEA to authorize this type of instrument.

Article 5 number 2 of the LFE could also lead to some confusion, since it recognizes private instruments signed with FEA the same probative value as public instruments. This rule does not make both instruments equivalent in terms of their legal value, since the probative value in court is not the same as the absolute legal value of a document. To exemplify: the statements about facts that are contained in a private instrument for the sale of property signed with FEA may have the same probative force as if they had been formulated in a public deed, but that does not mean that that private instrument will be accepted by the Real Estate Curator to carry out the tradition of the property,

A very recent case illustrates this very well. In consideration of the state of catastrophe that affects our country, on April 7 of this year the 11th Civil Court of Santiago, in case C-6045-2018, resolved to sign a public deed of adjudication at auction using an advanced electronic signature and then forward it. digitally to the relevant notary’s office. However, when the registration of that document was required in the Santiago Real Estate Custodian, it refused to practice it, warning that the instrument in question would not be a true public deed.

Faced with this refusal, the interested party asked the court to order the Conservator to practice the registration anyway. Based on articles 3 and 4 of the LFE, which we have already analyzed, on April 30, 2020, the 11th Civil Court of Santiago ordered the Real Estate Curator to register the adjudication instrument signed with the FEA . In response, on May 11, 2020, the Conservator informed the court of the grounds for its decision , explaining that the instrument in question could not be registered because it was not a true public deed:

«So when confronted with the provisions relating to the public deed contained in articles 403, 405, 426 N ° 5 and 401 N ° 7 of the Organic Code of Courts and in articles 1699 and 1770 of the Civil Code with the document accompanied to register dated April 8 from the notary office of Valeria Ronchera, it is possible to conclude that it is not a public deed as a public or authentic instrument that meets the requirements of the aforementioned articles, but that it is an electronic document whose original is in a repository for its verification and the tenor and expressions used in its writing appears to be a public deed without being so .

Resolving this controversy, on June 23, 2020, the plenary session of the Court of Appeals of Santiago ordered that the adjudication instrument be annulled , requiring the court to execute the adjudication by a true public deed (“ the Judge of the Eleventh Civil Court is instructed of Santiago to order the necessary actions so that an instrument is granted for this purpose in a material form»). Additionally, and evidencing a clear concern with what happened, the full Court ordered all civil courts in Santiago to report on the way in which they are proceeding with the public auctions and issued its decision to the Supreme Court and to all those involved in the controversy. (the court, the notary who authorized the instrument and the Santiago Real Estate Curator).

2.2 The acts that must be granted by private instrument signed before a notary admit the use of electronic signature, but appearing before it

The acts or contracts that the law requires to sign by private instrument granted before a notary will not produce their effects if they are only signed by electronic signature, for the same reasons that we have given in the case of public deeds.

However, unlike the case of public deeds, for this type of acts the use of electronic signature is not totally prohibited and is possible under the following circumstances: if the parties concur to sign the electronic document in the presence of the notary, who in turn, it certifies the granting of the document using its own advanced electronic signature.

This possibility would be recognized in the fourth and eighth agreements of the Agreed Order on the use of documents and electronic signatures by notaries, conservators and judicial archivists that the Supreme Court adopted in 2006:

«Fourth: Holders of electronic signatures, within the scope of their functions and competence, may electronically issue, through the use of advanced electronic signature, all the documents that the law allows , especially authorized copies of public and private instruments, notarized documents, certifications of digital signatures stamped in their presence , protests and verifications of facts and certifications referring to records and actions.

Eighth: In the cases in which the Notary authorizes a digital signature stamped in his presence , he must attest to having been credited with the identity of the signer in the terms established in the Organic Code of Courts ».

The practical utility of this modality is very low, since it is still necessary to appear before the notary, so that the most important advantage of the electronic signature is not taken advantage of, which is the possibility of entering into a contract remotely.

Some examples of acts and contracts that the law requires to be granted before a notary are the transfer of copyright [9] , the constitution of a pledge without displacement [10] or the constitution of a non-profit corporation or foundation [11] .

2.3 The possibility and usefulness of subscribing promissory notes electronically raises controversy

The possibility of subscribing a promissory note electronically faces two difficulties:

i) Can a promissory note be signed by electronic signature? Part of the doctrine holds that the legal nature of the promissory note is intrinsically related to its uniqueness and materiality: the promissory note would be a physical document, and not an abstract obligation that can subsist intellectually regardless of the support on which it appears. For this position, the electronic promissory note would be nothing more than a private instrument in which a debt is recognized, but it would not properly be a promissory note, to which its own norms can be applied (law 18,092).

Against this position it has been argued that the existence of an electronic promissory note would be possible by virtue of the principle of equivalence between supports enshrined in the LFE, and that being this later and more specific law, it should prevail over the classic and previous doctrinal notions in The matter.

ii) In order for the promissory note to have executive merit, the participation of a notary is also required, either for the protest process or at the time of its execution. Even overcoming the previous doctrinal debate, there remains another drawback for the electronic promissory note: for a promissory note to enjoy executive merit – which is one of its main attractions – the protest procedure regulated in article 60 and following must be carried out. of law 18,092, which implies the intervention of a notary or an official of the Civil Registry; or (ii) have been signed before a notary [12], either by handwritten or electronic signature, as explained in section 2.2. As can be seen, both demands involve the intervention of a notary, either to authorize the document or to make the protest, which makes the practical usefulness of an electronic promissory note much less than intended.

Due to these considerations, in 2012 the Executive presented a bill ( bulletin 8466-07 ) to modify the norms related to the promissory note – which we refer to later – expressly recognizing the possibility that it be signed by advanced electronic signature and sealed of time, and granting executive merit in such circumstance.

2.4 Examples of acts and contracts that can be entered into by electronic signature

i) Simple mandate. There have been divided positions in doctrine and jurisprudence on the need for the mandate to comply with the same solemnities that the law requires for the commissioned act [13] . This debate becomes relevant in determining whether or not a mandate can be concluded electronically. If the thesis is accepted that the solemnity of the mandate must be the same as that of the commissioned act, a mandate for the celebration of acts that, for example, require a public deed, could not be celebrated by electronic signature.
ii) Authorization or license contracts for works protected under copyright or industrial privileges.
iii) Acceptance of terms and conditions of use on an electronic commerce site.
iv) Assignments of industrial property rights.
v) Authorizations for the processing of personal data.
vi) Various commercial agreements, such as distribution contracts, franchises, etc. (to the extent that they do not contain acts that cannot be executed by electronic signature, such as the sale of property, for example).
vii) Confidentiality contracts.
viii) Subscription of minutes of Board meetings (see NCG 434/2020 of the Commission for the Financial Market ).

THE PROJECT TO REFORM THE ELECTRONIC SIGNATURE LAW

As we have shown, there are still several impediments to adopting the massive use of electronic signatures. There are acts and contracts that must necessarily be signed by public deed and others that, being able to be signed by electronic signature, require that signature be made in the presence of a notary, thereby losing the usefulness of electronic means.

With the purpose of eliminating some of these impediments and promoting the massification of the use of electronic signatures, in 2012 the Executive presented a bill ( bulletin 8466-07 ) that today is in the third constitutional process, and that intends to introduce a set of improvements to the LFE and other standards, among which we will highlight three:

i) The concept of “time stamping” is introduced, which is defined as the ” assignment by electronic means of the date and time in which an electronic document is signed with the intervention of an accredited provider of certification services, who gives an account of the accuracy and completeness of the document’s time stamp ”. This concept is then required to supplement the work of the notary in the granting of certain acts.
ii) It establishes the possibility that the use of FEA and time stamp supplants the legal requirement to authorize an act before a notary: «In all those cases in which the legal system requires that the signatures of the grantors of a certain legal act must be authorized before a notary, either as a solemnity of the act or as a requirement to make it enforceable before third parties or for any other legal effect, said requirement or solemnity shall be understood as fulfilled by the sole fact that the act is recorded in an electronic document signed by the grantor or the parties, as appropriate, with an advanced electronic signature and time stamping ”. [14]
iii) Law No. 18,092 is amended, expressly establishing that the bill of exchange and the promissory note may be issued in an electronic document and signed with FEA and time-stamped, and that they will enjoy executive merit in such circumstance. It is also specified that the protest of these documents may be made by electronic document, in which case the official who carries out the diligence must sign it with FEA and time stamping.

These modifications constitute a great contribution to overcome some of the obstacles that the electronic signature faces today and that have been felt so much in these times of pandemic that they demand the possibility of celebrating acts and contracts remotely. However, the project leaves a great pending issue: to introduce facilities so that acts and contracts that require the solemnity of a public deed can also be carried out remotely.

In effect, the possibility of satisfying this solemnity by means of FEA and time stamping was expressly forbidden in the project, through the following rule: ” The provisions of the fourth paragraph [15] shall not apply to public deeds . 

We understand that the acts that require the solemnity of a public deed are very important and that it would be imprudent or reckless to allow them to take place without making an exhaustive verification of the identity of the contracting parties, as allowed by the appearance before a notary. However, we believe that the legislator could find formulas to reconcile the solemnity of these acts, with the urgent social need to facilitate their remote celebration.

A possible formula could be to modify the rules of the Organic Code of Courts in order to allow public deeds to also be granted remotely, requiring that the celebrant appear before the notary through some technological tool (for example, through videoconference) to verbally ratify their will to celebrate the event, and sign the electronic document at that precise moment, using their advanced electronic signature and time stamping. As an additional safeguard, technical and organizational security measures associated with the use of the tool by the parties and notaries could be required; and create strict storage obligations for notaries (eg, keep a recording of the video appearance).

CONCLUSIONS

Current legislation does not allow the electronic signature to be used for the celebration of all kinds of acts and contracts, considering that the electronic signature, especially in its simple form, can easily allow identity theft. In this context, it is understandable that the legislator wants to protect certain acts by requiring the parties to appear personally.

However, the use of technological means and the need to carry out an appropriate verification of the identity of the contracting parties are not exclusive aspects. The pandemic that is hitting us today has made clear how urgent it is to modernize our legislation to design creative formulas that allow us to celebrate the most solemn acts by remote means, but with robust contracting authentication mechanisms.

 


[1] The Regulation of the LFE is Decree No. 181/2002 of the Ministry of Economy, and regulates electronic documents, their effects; the types of electronic signature; and the certification and accreditation process.
[2] Electronic documents are defined by the LFE as ” any representation of a fact, image or idea that is created, sent, communicated or received by electronic means and stored in a suitable way to allow its later use “.
[3] Art. 2nd letter f) LFE.
[4] Art. 2nd letter g LFE.
[5] The current accredited providers of this kind of signature are: (i) BPO-Advisors (IDok): https://bpo-advisors.net ; (ii) TOC: http://www.toc.cl/; (iii) E-PARTNERS (Paperless): http://www.pkichile.cl/ ; (iv) CERTINET SA: http://www.certinet.cl/ ; (v) E-SIGN SA: http://www.e-sign.cl ; (vi) ACEPTA.COM: http://www.acepta.com ; (vii) E-CERT CHILE: http://www.e-certchile.cl ; and (viii) Thomas Signe: http://www.thomas-signe.cl .
[6] Art. 1801 of the Civil Code
[7] Art. 2409 of the Civil Code
[8] For example: (i) the notary must incorporate the deed in his protocol or public registry (art. 403) and render useless, with his signature and stamp , the unwritten reverse of its sheets(art. 404 final paragraph); (ii) the deed must be initialed and sealed on all its pages by the notary (art. 406); (iii) the parties must have the opportunity to demand that the notary read the deed aloud (art. 407); (iv) the notary or any of the grantors must have the opportunity to demand that the rest of the celebrant leave their fingerprint on the document (art. 409).
[9] Art. 73 of Law 17,336 on intellectual property. According to the norm, this act can also be granted by public deed.
[10] Art. 14 of Law 20,190. According to this rule, the instrument must also be formalized in the registry of the same notary who authorizes.
[eleven]Art. 548 of the Civil Code.
[12] Art. 434 n ° 4 of the Code of Civil Procedure.
[13] In favor of the thesis that the mandate should be solemn if the act commissioned is solemn, see the opinion of Fernando Alessandri and recital 24 of the Supreme Court ruling issued on May 31, 2017 in case roll 50.064- 2016 . For the opposite thesis, see the opinion of David Stitchkin and recital 7 of the Supreme Court ruling issued on December 27, 2017 in case 42.458-2017 .
[14] New art. 4th subsection 4 of the LFE, if the project is approved.
[fifteen] It refers to the subsection that allows the use of advanced electronic signature and time stamping to meet the legal requirement of authorizing an act before a notary public.

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