Remote Contracting
In today's times, you can practically do anything online. Especially in the current situation related to the ongoing threat of infection due to the pandemic, remote contract making remains a convenience that is worth taking advantage of.
The most important thing when making a contract is to make a consistent statement of will, that is, to express the agreement of each of the parties to the terms of the contract. According to Article 60 of the Civil Code - with the exceptions provided for by law - the will of the person performing the legal act may be expressed by any behavior of that person which reveals his will in a sufficient manner, including by revealing this will in the form of an electronic document. The question arises in this situation whether exchanging emails or electronically sending signed documents will be enough to conclude a contract?
The basic principle in the conclusion of contracts is the principle of freedom of contracts, written in Article 353 of the Civil Code. One of the elements of the indicated principle is the freedom to choose the form of conclusion of the contract. Therefore, the parties may, where the law does not prohibit it - express their will in any way, provided that this will has been expressed in a sufficient manner. It is therefore possible to conclude a contract orally as well as electronically. However, concluding a contract in writing is a certain standard and convenience, in case of later evidentiary needs. However, the legislator has introduced certain restrictions on the form of conclusion of certain contracts. Failure to comply with the appropriate forms in certain cases results in the absolute invalidity of the contract, i.e. the legal act is treated as if it had never been done.
The Civil Code provides in its general part six special forms of legal acts: the form of a notarial deed, the form of signatures certified by a notary, the electronic form, the documentary form, the written form and the written form with a certain date. For remote contract making, the most important forms will be: electronic, written and documentary.The emergence of the electronically qualified form in the Polish legal system is the result of dynamically developing modern techniques of remote communication and signing contracts at a distance. Currently, according to Art. 78 of the Civil Code, to maintain the electronic form of a legal act, it is sufficient to make a statement of will in electronic form and to affix it with a qualified electronic signature. However, not every electronic signature allows for the submission of a statement of will in electronic form. A qualified electronic signature means an advanced electronic signature, which is signed using the appropriate device for signing it and which is based on the appropriate certificate. Signing a contract in electronic form is equivalent in effect to entering into a contract in written form.
In the case of written form, according to the applicable provisions of the Civil Code, for its maintenance - it is sufficient to make a handwritten signature on the document containing the content of the statement of will. The signature remains a constitutive element of the document - without signing, the written form of the statement of will is not maintained. As a rule, it is sufficient to sign one's own copy, however, the exchange of originally signed copies has an important evidentiary value.
To maintain the documentary form of a legal act, it is sufficient to make a statement of will in the form of a document, in a way that allows the determination of the person making the statement. According to Art. 77 of the Civil Code, a document is a carrier of information enabling familiarization with its content. Statements made in documentary form will therefore include messages exchanged via e-mail or other messengers, documents signed with the Trusted Profile, but also documents bearing a non-handwritten signature or an unqualified electronic signature.
In order to determine whether a given contract can be signed remotely, it will be necessary to answer the question whether, for a given type of contract, a special form of legal act is required in accordance with the regulations and, if so, what requirements it entails. The effectiveness of the concluded contract should be assessed taking into account the applicable general rules, but also the specificity of the specific contract.
This article was prepared by the Law Office of Arkadiusz Jaskuła, which provides legal services to companies, also for SOTE and our customers: www.adwokat-jaskula.pl
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