The way of contracting has changed: whereas previously the need for a physical contract signed manually by the parties was the rule, today it is becoming obsolete.
In a much less bureaucratic and much less laborious manner, contracts have undergone massive digitalization. This is due to technological advances in the digitization of various operations and especially the ability to validate the will of the parties to give their consent in ways previously impossible or improbable.
The manifestation of acceptance to form a contract has evolved from a physical, in-person, handwritten signature to a series of different mechanisms for validating the will expressed in digital environments. For example, signing via token/digital certificate, systemic acceptance on a dedicated platform through encrypted access, digital biometrics, contracting by voice recognition, or even contracting through facial recognition, also known as facial biometrics.
These advances have been accepted and reaffirmed multiple times within the national legal framework. The Civil Code itself, in its art. 107, states that the validity of a declaration of will does not depend on a special form, except when the law expressly requires it. Thus, for the validity of the contract, national legislation has already established that a physical signature is not necessary, and it can be done electronically.
However, when we refer to contracts involving consumer relations, including those formalized digitally, the national judiciary still receives claims that try to question possible contracts, often through questions about the validity of the manifestations of will.
This type of questioning, common in consumer relations involving financial institutions, has even been analyzed by the Superior Court of Justice in its analysis of theme 1061, (I would add a period and start with “on this occasion”) occasion in which it consolidated the understanding that, in cases where the consumer challenges the authenticity of the signature on the contract attached to the process, the financial institution bears the burden of proof.
However, quite mistakenly, at least concerning contract operations formalized digitally, the STJ’s understanding has been used not as a justifiable redistributor of the burden of proof but rather, in most cases, as a mandatory factor for conducting judicial expertise, which is often costly and unnecessary.
This unjustified accommodation in the production of expert evidence, without the obligation or need for it, demonstrates a disconnect from the correct interpretation of STJ theme 1061, since, although it has assigned the burden of proof to the bank, it does not specify that the proof must be exclusively expert.
It is certain that, even if the consumer’s manifestation of will is challenged in a specific action, but other sufficient evidence is present in the records to confirm or refute the legitimacy of the signature on the contractual instrument, a technical expert examination would be unnecessary, and therefore, the anticipated judgment of the case without this evidence would be convenient, without any claim of defense impairment on this basis.
Moreover, in the presence of proof of the transfer of funds to the litigating consumer, it is clear that the need for technical expertise is further reaffirmed, as the loan contract, by its very nature, is perfected precisely with the transfer of the asset.
The lack of need for expert evidence is highlighted when considering contracts formalized digitally, where the act of signing is not performed in isolation but as part of a set of elements.
Thus, the defendant who eventually presents these combined elements should have the requirement of proof sufficiently met, precisely because, unlike a physical contract where isolated signature analysis is possible, when considering an operation agreed upon through some digital platform, the signing process encompasses more than just a simple scribble on paper.
In the digital contract models already adopted by the vast majority of financial institutions, for signature/acceptance of contractual terms, access logs are recorded, indicating the date and time of each operation movement, geolocation with latitude and longitude of the device used for contracting and acceptance of the stages involved in the act of contracting, IP identification of the device used, or some other element capable of identifying the contracting instrument, in addition to the image capture as facial biometrics.
Moreover, it is common for these institutions to provide conclusive documents on the formalization, in addition to the contract itself with its clauses and amounts. These documents highlight and list all these signature elements, serving as evidentiary dossiers of the contracts and being subject to analysis by the judge.
These digital contract dossiers, presented in court and often overlooked by judges, are precisely intended, in the event of a challenge to the authenticity of the manifestation of will, to ensure the institution’s ability to prove this authenticity and to allow the judge to simplify the verification of the operation. The dossiers condense all the necessary elements for validating the operation through the set of information provided, demonstrating the lack of necessity for technical expert analysis.
Similarly, the correct and sufficient interpretation of the evidence already produced, dismissing unnecessary expert evidence in digital contracts, demonstrates adherence to the procedural principles of Reasonable Duration of the Process, Efficiency, and Cooperation, optimizing and facilitating the achievement of just results for those involved, both in terms of the content of final decisions and the time it takes to reach those decisions.
This line of reasoning has already been observed by some judges, especially in cases of digital contracts, such as:
Rejection of contract dispute. Appellant presents “Digital Contracting Evidence Dossier,” with image capture of the plaintiff, data of the used cell phone, latitude and longitude, IP (pages 160/183). Reasonable proof of contracting. Unnecessity of expert evidence and impossibility of its execution given the plaintiff’s choice of court. Claim dismissed. Loan maintained. Appeal granted. No loss. (TJ-SP – Civil Appeal: 1042764-36.2022.8.26.0576 São José do Rio Preto, Rapporteur: Paulo Sérgio Romero Vicente Rodrigues, Judgment Date: October 17, 2023, 5th Civil Panel, Publication Date: October 27, 2023) – emphasis added
ACTION FOR ANNULMENT OF CONTRACT WITH DAMAGES FOR MATERIAL AND MORAL DAMAGE. Judgment of dismissal. Plaintiff’s challenge. Inapplicable. BANK CONTRACT. Bank Credit Certificate. Electronic Contract. Validity. The contracting dossier contained all necessary information, such as acceptance of the facial biometrics policy and privacy policy, security tips, selfie capture. The defendant provided ample evidence in the records, clearly indicating the plaintiff’s authorship. Geolocation referring to the residential address stated in the initial petition. Service provider demonstrated the contractual relationship between the parties and the legitimacy of the charges. Judgment upheld. Appeal denied. (TJ-SP – Civil Appeal: 1001626-52.2022.8.26.0459 Pitangueiras, Rapporteur: Helio Faria, Judgment Date: June 09, 2024, 18th Private Law Chamber, Publication Date: June 09, 2024) – emphasis added
Thus, it is evident that the authenticity or not of the consumer’s manifestation of will can be sufficiently proven by the sum of the elements already indicated in the records when it comes to digital formalization of contracts, a conclusion that is evident from the very nature of this type of operation and the existence of the contract dossiers that summarize the validation and operational points existing in the course of the digital pact, even obviating the mistaken and costly need to produce expert evidence.
Bibliography:
BRASIL. Lei nº 13.105, de 16 de março de 2015. Código de Processo Civil. Brasília, DF: Presidência da República, [2015]. Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm. Accessed on: July 13, 2024.
BRASIL. Lei nº 10.406, de 10 de janeiro de 2002. Código Civil. Brasília, DF: Presidência da República, [2002]. Available at: https://www.planalto.gov.br/ccivil_03/leis/2002/l10406compilada.htm. Accessed on: July 13, 2024.
Gonçalves, Carlos Roberto. Direito Civil Brasileiro: contratos e atos unilaterais, volume 3, 20ª ed., Saraiva, 2023 – São Paulo.
LUCAS, Lucas. Avanços e desafios das assinaturas eletrônicas no Brasil, 2024. Available at: https://www.conjur.com.br/2024-mai-28/avancos-e-desafios-das-assinaturas-eletronicas-no-brasil/. Accessed on: July 13, 2024.
O ônus da prova da autenticidade da assinatura em contratos bancários: análise do tema 1061 do STJ, 2023. Available at: https://www.migalhas.com.br/depeso/390215/o-onus-da-prova-da-autenticidade-da-assinatura-em-contratos-bancarios. Accessed on: July 13, 2024.
BRASIL. Tribunal de Justiça de São Paulo. Recurso inominado cível nº 1042764-36.2022.8.26.0576. Recorrente: Banco C6 Consignado S.A. Recorrida: Sandra Regina Requena Martins. Relator: Paulo Sérgio Romero Vicente Rodrigues, Judgment Date: October 17, 2023, 5ª Turma Cível, Publication Date: October 27, 2023.
BRASIL. Tribunal de Justiça de São Paulo. Apelação cível nº 1001626-52.2022.8.26.0459. Apelante: BANCO PAN S.A.. Apelada: Celso de Felício. Relator: Helio Faria, Judgment Date: June 9, 2024, 18ª Câmara de Direito Privado, Publication Date: June 9, 2024.
Available in: https://www.migalhas.com.br/depeso/412511/contratos-digitais-desnecessidade-da-producao-de-prova-pericial-e-stj
Autor: Lucas Rodrigues Lucas • email: lucas.lucas@ernestoborges.com.br
