Execution of Remote Contracts.
Starting Points and Issues to Consider.
Considering the impossibility people have to register its digital signature, set in Law No. 25,506, since they cannot assist personally before the licensed certifier to evidence their identity as a consequence of the Social, Preventive and Mandatory Isolation established by Decree 297/20, and in similar situations that may arise in which the face-to-face interaction between people is not feasible -legal and / or factually- or the registration of their digital signature, it is worth asking:
Is it possible to enter into contracts remotely?
Would it be convenient and safe? Will these contracts have the same scope and enforceability as those whose execution is captured on paper with an holographic signature?
Will there be restrictions to evidence this contract? Is it possible to duly evidence its execution date?
Can the authority and identity of the signatories be credibly validated?
The answer to all these questions is affirmative for the majority of cases. Please note that in many foreign jurisdictions the positive answer to these questions is self-evident, but Argentina has a long standing tradition of agreements executed in paper, with holographic signature and notary public’s certification.
CONTRACT EXECUTION. According to Article 971 of the Civil and Commercial Code, contracts are concluded with the formation of consent, that is, with the reception of the acceptance to an offer or with certain conduct of the parties that is sufficient to demonstrate the existence of an agreement. Likewise, the code defines acceptance as “any declaration or act of the recipient that reveals conformity with the offer”. In this sense, it is then possible to demonstrate the formation of consent remotely, since it is not required that it be recorded simultaneously, on paper and that it contain an holographic signature in the universe of “non-formal contracts”.
PROOF OF CONTRACTS. For its part, Article 1019 of the aforementioned code allows contracts to be evidenced by any means that is appropriate to form a reasonable conviction (except, once again, when there is a specific legal requirement). This breadth will allow proof of the entering of the agreement and its terms and conditions in different ways, based on declarations or acts of the parties, documented or externalized through different means or supports, as well as uses, practices and habits that are not contrary to the law. The good faith and diligence of each party will be relevant. Although each case must be analyzed, to preserve the integrity of the contract and its terms and conditions, there are currently a wide variety of electronic means, which even provide greater security than paper and the holographic signature against certain risks.
CERTAIN DATE. As “the evidentiary efficacy of recognized private instruments extends to third parties from their certain date”, and this can be evidenced “by any means, and must be strictly evaluated by the judge.” As a consequence of this evidentiary breadth, different alternatives arise to prove the certain date of a contract, through a combination of acts of the parties and written documents or acts from third parties, which allow documenting the certain date of the contract.
EVIDENCING AUTHORITY AND IDENTITY VERIFICATION. Also the authority can be evidenced credibly through a copy of documentation in electronic support, a possible validation from independent data bases, or the conduct of the parties in relation to the contract. Notwithstanding those persons who have a registered digital signature, prior to this COVID-19 pandemic, there were already uses, practices and habits in this regard, which can also apply to verify the identity of the person providing the consent to enter the contract based on technological tools and electronic data available.
It is for all the above that contracts can be concluded remotely through different mechanisms, depending on the nature of the contract and the degree of knowledge of the contracting parties, with a high degree of integrity and enforceability, according to our reasonable opinion.
The potential impact of the Stamp Tax will have to be analyzed in each contract concluded remotely. On the other hand, these preliminary conclusions do not necessarily apply to contracts that are governed in their forms of execution by foreign laws.
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