Electronic signature

The electronic signature designates an electronic means of identification allowing to ensure the traditional functions of the handwritten signature, namely :

• Identification of the signatory and,
• The expression of consent to the act.

There are several levels of electronic signatures, depending on their level of security and the steps involved in validating the identity of the signatory.

An electronic signature can thus be considered as “advanced” as soon as it :

• Is univocally linked to the signatory;
• Allows to identify the signatory;
• Has been created using electronic signature creation data that the signatory can, with a high level of confidence, use under his exclusive control ;
• Is linked to the data associated with this signature in such a way that any subsequent change is detectable.

An electronic signature can be considered as “qualified” as soon as the certificates include specific attributes and the devices used to create the electronic signature are certified by trustworthy organizations controlled in France by the Agence Nationale de la Sécurité des Systèmes d’Information.

Finally, an electronic signature can be considered as “simple” if it does not meet the criteria of advanced and qualified electronic signatures.

However, only the qualified electronic signature produces legal effects equivalent to those of a handwritten signature.

Consequently, in the event of a challenge to an advanced or “simple” signature, it is up to the signatory to prove the validity of the signature by any means.

The choice of the signature mode must take into account the importance of the documents concerned and the practical constraints associated with each level of electronic signature.

Point of legislation

“The signature necessary for the perfection of a legal act identifies its author. It manifests its consent to the obligations arising from this act. When it is affixed by a public officer, it confers authenticity to the act.

When it is electronic, it consists of the use of a reliable identification process guaranteeing its link with the document to which it is attached. The reliability of this process is presumed, until proof to the contrary, when the electronic signature is created, the identity of the signatory is assured and the integrity of the document is guaranteed, in accordance with the conditions laid down by decree of the Council of State.

Article 1367 of the Civil Code

Point of jurisprudence

The ‘Cour de cassation’ has considered that “the contract under which the sports agent carries out his activity must be signed electronically when it is established in electronic form. However, if this constitutes one of the conditions of validity of the contract, its absence, while neither the identity of the author of the email giving the sports agent mandate nor the integrity of its content is contested, may be covered by a voluntary execution of the contract with knowledge of the cause of nullity, valid as confirmation pursuant to Article 1338 of the Civil Code, in its wording prior to that resulting from Ordinance No. 2016-131 of February 10, 2016.”

Cour de cassation, October 7, 2020, N° 19-18.135

The Bouchara Law firm assists you in particular in :

• Assistance in choosing an electronic signature solution for your organization;
• Litigation related to the validity of an electronic signature ;
• The contractualization of your relationships.