E-Signature has been created through our partner Signaturit, the digital platform that makes it easier for the customers to sign contracts by using the electronic signature solutions, optimized for mobile devices.
Contracts and documents signed with E-Signature in Factorial are made with advanced signature, legal and have legal validity. This advanced electronic signature solution complies with the EU and US electronic signature laws, the most advanced worldwide.
The conditions must a contract meet to have legal validity?
As indicated by the Spanish general norms of Law, in order for the concerted action by the parties to have legal validity, it is important that the following elements concur, as stated by the Spanish Civil Law:
- that there is the will or consent of the parties (articles 1.262 to 1.270),
- that there is an object or contractual purpose (articles 1271 to 1273) and
- that the mentioned object is based on a legal cause (articles 1274 a 1277).
With the technological advances and in this case, the feature offered by Factorial and Signaturit allows the consent to be expressed regardless of where the signatories are located.
Therefore, in the event that the contract is signed electronically with E-Signature, the validity of the legislation in force in the account of the previously affected elements, which will be considered in the same way to the contract signed presential.
How to prove that a contract signed with E-Signature has legal validity?
As the handwritten signature, the electronic signature allows the agreement between the parties to be valid and binding.
In a virtual environment, we can say that it has legal validity when we can demonstrate that there is consent by the parties linked to the contract through the electronic signature, complying with the three previous legal requirements.
Nowadays, there exist tools such as the advanced signature E-Signature, which allows electronic documents to be signed, so that the legal protocols required by law are complied with, which becomes the contract in a valid and binding contract.
From a technical level, the advanced electronic signature, as we explain in the following section, is the electronic signature that allows identifying the signer and detecting any subsequent changes to the signed data. This signature is linked to the signer in a unique way and to the data to which it refers, and has been created by means that the signer can keep under his/her exclusive control.
Our Signaturit partner, to fulfill these requirements, they collect electronic evidences such as geolocation, biometric data encryption, and time stamping come together to create a document that technically certifies the signer’s will.
Legal requirements for the advanced electronic signature
The regulatory framework for advanced electronic signatures in the EU is established by Regulation (EU) No. 910/2014, known as eIDAS, which concerns electronic identification and trust services for electronic transactions in the internal market.
In Spain, the electronic signature is governed by Law 59/2003 of December 19, concerning the electronic signature, which was modified by Law 56/2007 of December 28, of Measures to Promote the Information Society, and by Law 25/2015 of July 28, of second chance mechanism, reduction of the financial burden and other measures of social order.
The Regulation (EU) No. 910/2014 repealed the previous Directive 1999/93 - which transposition gave rise to the Spanish Law 59/2003 on electronic signature. This law is still in force (tacit derogation) and will disappear when a new national regulation replaces it.
Article 26 of Regulation (EU) No. 910/2014 indicates the legal requirements of advanced electronic signatures, requiring the following:
- “it is uniquely linked to the signatory;
- it is capable of identifying the signatory;
- it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and
- it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable”.
Article 25 of the same regulation establishes the probative value of the advanced electronic signature when it states:
“An electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures. (...)”
According to all of the above, the advanced electronic signature enjoys recognition and legal support in the European Union. The use of the same is becoming increasingly common, is the responsibility of each company to choose the appropriate tool.
If it is intended for consent in legal acts to be supported by evidence (have probative value), therefore it is important to use an appropriate and legally valid technological instrument.
It is specifically relevant that this instrument complies with the legal requirements established by Regulation (EU) No 910/2014 for the advanced electronic signature, which has been previously commented.