8/31/2020
Brazilian law ensures freedom of contracting to the parties, providing that the validity of the declaration of will shall not depend on a special form, except when the law expressly requires it. That means that there is no legal prohibition for the parties to formalize their declarations of will by digital form, by means of using electronic signatures in contracts and other instruments.
In this context, the Federal Government, through the Provisional Presidential Decree No. 2200-2, dated August 24, 2001, instituted the Brazilian Public Key Infrastructure – ICP-Brasil, to assure the authenticity, integrity and legal validity of electronic documents, support applications and qualified applications that use digital certificates, as well as the performance of secure electronic transactions.
Therefore, the certification of the electronic signature by an entity registered with ICP-Brazil works for the electronic signature as a sort of authentication (reconhecimento de firma) in a paper signature, but without the need to attended in person the notary’s office.
However, such Provisional Presidential Decree, on its article 10, paragraph 2, does not forbid other ways of proving the authenticity and integrity of electronic documents, as long as admitted by the parties as valid or accepted by the person to whom the document is opposed, thus, the certification by an authority registered with ICP-Brasil is not mandatory for the electronic signature to be valid.
The Court of Justice of São Paulo confirmed this understanding while judging the validity of electronic signature discussed on an enforcement procedure of a lower court decision determining the amendment of the statement of claim in order to adjust the rite to the ordinary proceeding, since the signatures of the documents were not certified by an entity registered with ICP-Brasil.
The decision of reporting justice Francisco Casconi concluded that, although the title does not hold legal presumption of authenticity, there is an express legal permission for the use of other digital methods of evidence of authenticity and integrity of the electronic document, even if without a certification issued by ICP-Brasil. Once the formal conditions provided by law for the use of the enforcement procedure are met, i.e., the debtor’s signature and two witnesses’ signatures, to impair the execution of an enforceable instrument due to the lack of certification by an authority accredited to ICP-Brasil would be equivalent to “remove from individuals the freedom traditionally granted to them to act and contract among themselves and to render meaningless to paragraph 2 of article 10 of Provisional Presidential Decree 2,200-2/01“.
Therefore, the electronic signing is an alternative that is and has being used more frequently in business practice, except when other specific requirements and/or formalities are set forth in the legislation.
L.O. Baptista Advogados’ team is available to clarify any doubts in this regard.
Coauthors: Daniela Zaitz and Ana Beatriz Bomtorin Gomes de Jesus
