The idea of a manifestation of will in person, attested by hand signature, appended on a hard copy, attended by witnesses, and even with confirmation of validity through a public certification in a notary's office, held sway for a long time as an almost unique way of guaranteeing the lawfulness and veracity of an agreement.
However, this not-so-distant past no longer rules the daily lives of those who intend to enter into agreements in Brazil, since there is currently an evolution in the field of contractual operationalization that enables much less red tape and quite less labor intensity, a result of the technological advances allowing the digitization of the most disparate operations, especially with the possibility of validating the will of the parties, and proceed with their consent in ways that were previously impossible or unlikely.
This acceptance required to sign an agreement has evolved from a physical, in-person and handmade signature to a number of different mechanisms for validating the will manifested in digital environments, such as signing via a digital certificate/ token, systemic acceptance on a special platform through encrypted access, digital biometrics, hiring by voice recognition or even contracting through the photographic capture of the contracting party's face, also known as facial recognition.
This evolutionary change in contractual signatures was considerably favorable to the tertiary sector, to the extent that contracting parties no longer needed to be present, which sometimes hindered the feasibility of contracting, which ultimately helped democratized access to goods and services previously out of reach for a wide range of consumers.
In order to regulate and ensure the security of those involved in digital operations, years ago, the Brazilian Public Key Infrastructure was established through Provisional Presidential Decree No. 2.200-2/2001. Also known by the acronym ICP-Brasil, it basically consists of a hierarchical chain that regulates, manages, and enables the issuance of digital certificates used to externalize manifestations of will in digital documents.
However, the creation of ICP-Brasil, which actually contributed to the dissemination of technological mechanisms and enhanced the digitization of contractual relations in our country, sometimes also led to a misinterpretation of the Provisional Presidential Decree by judges who received lawsuits involving different forms of contracting.
The court system sometimes continued to rule that the validity of a certain digital contract would only be guaranteed by the existence of certification or validation of the signature through ICP-Brasil, that is, if a certain operation was not agreed with a digital certificate from ICP-Brasil, the entire operation would be invalid.
It is true that the said restrictive interpretation is extremely wrong, since the Civil Code itself, in its Article 107, was already careful to expressly point out that the validity of the declaration of will would not depend on a predefined special form, except when the law expressly required it, that is, the law did not exclude the methods applied by the concerned parties, nor did it prohibit the use of those different ones that already exist or others that may arise.
Subsequently, Statement No. 297, of the Federal Justice Council, issued at the IV Civil Law Conference in 2006, also recognized the probative value of electronic documents, regardless of the technology used.
In addition, the very Provisional Presidential Decree that established ICP-Brasil, provided for in Paragraph 2 of its Article 10 the express provision in the sense that there are no impediments in forms of signature/contracting certified and instrumented by means different from those issued or regulated by ICP-Brasil, in verbis:
Article 10. For all legal purposes, the electronic documents referred to in this Provisional Presidential Decree are considered public or private documents.
[…]
Paragraph 2. The provisions of this Provisional Presidential Decree do not prevent the use of another means of proving the authorship and integrity of documents in electronic form, including those using certificates not issued by ICP-Brasil, provided that it is accepted by the parties as valid or accepted by the person to whom the document is submitted.
Still, the resistance of some judges is conspicuous regarding the validation of manifestations of will, especially the most different and modern ones.
Contrary to this resistance, the national legislature made sure to reaffirm the validation of such digital operations. This is because, in July 2023, Law 14620 was issued, which amended, among other issues, Article 784 of the Code of Civil Procedure, including Paragraph 4 to the said Article. And we quote:
Article 784. The following are instruments enforceable out of court:
(…)
Paragraph 4. In enforceable instruments instituted or attested by electronic means, any type of electronic signature provided for by law is allowed, and the signature of witnesses is waived when its integrity is verified by a signature provider.
The wording clearly implies a distance between the conservative position adopted by courts that electronic signatures would not be sufficient for the establishment of rights and duties in agreements, or else that they were only valid if signed with an ICP-Brasil certificate. What is more, it also brought as an innovation the exemption of witnesses for the contractual type.
As a result, favorable decisions altering previous restrictive interpretations are already seen throughout Brazil, but the road to full understanding of existing modifications and technological advances is still long.
It is clear that, despite the advances of the law and the judiciary's own interpretation on the subject, it is a mandatory activity of companies to seek more tools to guarantee the legitimacy of the manifestations of wills within the sale of their goods and services, so much so that digital contracting often already add elements of validation to compose the final act of signature, such as the capture of the author’s image, plus the comparison of the image with federal databases and with the contracting party’s own documents, in addition to capturing the geolocation of the electronic device used in the contracting.
It is certain that, with the increasing number of elements of ratification of the validity of the form and the willingness to enter into an agreement, in addition to the implied warranty to do so, the possibility of growth and development of alternative contracting mechanisms, allowing much more security and ease, are safeguarded, which benefits all those involved, both those who market some product or service, as well as those who contract.
Available in: https://www.conjur.com.br/2024-mai-28/avancos-e-desafios-das-assinaturas-eletronicas-no-brasil/
Autor: Lucas Rodrigues Lucas • email: lucas.lucas@ernestoborges.com.br
