Freedom of contract is one of the most fundamental
principles of civil law. It provides among others that
parties are free to formulate the substance of an
agreement between them and choose the form of the
agreement. While certain legal acts are required by
law to be concluded in special form, e.g. as a notarial
deed, the vast majority of agreements commonly
concluded in the course of general business dealings
may be drawn up in any form, including digital.
Conclusion of agreements by electronic mail is
largely subject to the same principles as executing
them in a traditional form. Agreements concluded by
e-mail, similarly to their traditional counterparts,
may comprise agreements concluded by way of an
offer being made and accepted, in the course of
negotiations, and auction or tender. However, the
advantages of executing agreements on-line include
reduced costs of the transaction, easier record
keeping, and time economies.
Despite all the above strengths, it must be noted that
declarations of intent made by e-mail significantly
hinder identification, which may cause practical
problems. In real life, even if the law does not
require that, contracting parties often decide to
conclude an agreement in written form for
evidentiary purposes. The parties which intend to
make declarations of intent are usually in the same
place at the time the agreement is being executed. In
order to comply with the written-form requirements
producing the intended legal effects, both parties
first verify their mutual identities (unless they knew
each other prior to the transaction), and subsequently
check whether the terms of the agreement comply
with their earlier understanding and whether the
instrument is complete (the parties usually initial
each page of the agreement), and finally sign the
instrument one after the other (in several
counterparts) by affixing their signatures at the end
of the agreement, which indicates that the signatures
refer to the terms set forth above them.
In the case of agreements concluded by e-mail the
situation changes dramatically as the absence of
direct contact and mutual verification means that the
declarations of intent cannot be made as described
above. A party that intends to conclude an agreement oftentimes cannot be sure about the identity of its
counterparty on the other end of the channel of
communication and cannot be certain whether the
agreement sent over a public network has not been
damaged or intentionally distorted or falsified. That
is why legislators have ensured that it is possible to
verify the identity and signature by using an
appropriate technology, collectively referred to as
the electronic signature. The electronic signature
means data in digital form added to other digital data
or linked logically thereto and applied as a
verification method. A declaration of intent made in
digital form and accompanied by an electronic
signature verifiable using a valid qualified certificate
(secure electronic signature) is equivalent to a
declaration of intent made in written form. In
addition, a secure electronic signature encodes the
text of the document preventing any distortion of its
content.
Consequently, a declaration of intent made by a
party and incorporated in an e-mail message
executed using a keyboard-entered signature will be
valid and effective; however, in the case of a court
dispute it will not be admissible in evidence as a
written document bearing a handwritten signature
would be. Yet, if the digital document is
accompanied by a secure electronic signature, its
evidentiary value will be equivalent to that of a
document made in a traditional written form.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary
of certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the
basis of any decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in
individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant
legislation or other legal development to the particular facts can be verified.