CORONA CRISIS: Remote execution of documents : when extreme circumstances ask for practical solutions
Given the current Corona crisis, companies are having their employees work from home. While it may not be business as usual, business must go on. In case documents or contracts need to be signed, companies need to consider how this signing process can be facilitated when teleworking. To avoid unnecessary printing and scanning work, electronic signing can provide for an efficient and paper-free solution.
Below you can find an overview of the different types of e-signatures and how these can be used.
Types of electronic signatures
There exist three types of electronic signatures. Although each type is valid from a legal perspective, the difference lies in the security level attached to it:
- the simple or standard electronic signature (“SES”) (for example a scan of a handwritten signature, an e-mail signature, signing via a pin code, etc.) offers the lowest level of security;
- the advanced electronic signature (“AES”) (for example Docusign, Adobe Sign, etc.) offers a higher level of security as more safeguards are put in place to ensure identification of the signatory and the immutability of the document signed;
- the qualified electronic signature (“QES”) (for example signing via e-ID, signing via qualified certificates, etc.) is the most secure e-signing method and has the same legal effect as a handwritten signature.
The purpose of a signature is to demonstrate the existence and agreement of the signatories to the content of a document or contract. An electronic signature is as such essentially the same as a handwritten signature : it constitutes proof that a person accepts the content of a document and will comply with the terms contained in it. However, the main issues that could rise with regard to the use of electronic signatures, depending on the different types as set out above, are (i) the proof that the person for whom the signature was created is indeed the signatory and (ii) whether the signed document has not subsequently been modified.
Which signature to use?
- Signing by qualified e-signature
The best and safest method, in particular for contracts between two or more parties, is QES as it has the same legal probative value as a handwritten signature. The QES method however requires the set-up and implementation of a qualified certificate. Such certificate can only be issued by a certified provider of which there are only a limited number of providers in Belgium (e.g. Quovadis, Certipost, itsme). This often presents an issue in practice as not everyone can immediately use this method.
- Signing by standard e-signature
As the SES method has no security guarantees in place and can thus be easily forged, we generally recommend only using SES for documents of low financial value (for contracts less than 3,500 EUR taking into account the evidence rules for contracts in the Belgian Civil Code), or commercial documents with a limited scope (e.g. provisional contracts or letters of intent).
- Signing by advanced e-signature
The most common e-signature method used by companies to sign various sorts of documents is AES. This type of signature is often used for signing of consumer credit agreements, sales and service provider contracts, lease agreements, electronic share ledgers, etc. AES is not recommended for documents subject to filing with official instances, government authorities and alike. Often these instances require a handwritten signature and thus will only accept QES if signed electronically. This could for example be the case for documents to be filed with the notary public, with the clerk’s office of the courts, with banks, etc. To date there is however no general rule or accepted sectoral practice within these authorities and instances. Nonetheless, this type of signature can be considered as the standard e-signature to be used for most commercial and corporate documents.
In the end, it all comes down to trust. In case there is mutual trust between the signatories, even SES (e.g. a simple scan of a signature) could be used. For important documents with a high value or in case of new partnerships or entirely new contracts, it is recommended to use a more secure signing method (i.e. an AES or if possible a QES), or to exchange “wet ink” signed versions after the Corona lockdown has been lifted and you can meet again.
Which e-signature is most fit-for-purpose will thus depend on the type of document that has to be signed and the (existing) relationship between the parties-signatories. When assessing which e-signature to use, keep in mind that the signing method should reassure you of (i) the identity of the intended signatory and (ii) the authenticity of the content of the document.
Finally, it is always advisable to check in advance with commercial partners about the use of electronic signatures and to make agreements about this in order to avoid later disputes.
Should you have any questions or require specific assistance, we can provide you with tailored advice on the use of electronic signatures. Please do not hesitate to contact one of our experts who will be happy to assist you with this.