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.