Since the beginning of the pandemic we have experienced in recent months, the processes to carry out all types of transactions have been accelerated with the certainty that the parties have given their consent in its celebration. An example of such is the electronic signature (“e-signature”) that has been implemented around the Globe today.

 ECIJA considers that the analysis of comparative law cases, from Spain, is often instructive, serving as a useful reference in Mexico. That is why we inform our clients and friends of an interesting judicial case that occurred in Lleida, Municipality of Cataluña, Spain.

In Lleida, the defendant in a trial was absolved by means of an appeal court ruling, from paying a balance to the debtor, for not accrediting the financial entity – plaintiff – that the signature that appeared in the contract was real.

 

About the case background

LTD INVESTCAPITAL, MALTA s a financial institution, filed, as plaintiff, a payment claim derived from a balance owed by the defendant, regarding the execution of a loan agreement in which the signature of the defendant was filed under the “DocuSign” electronic signature system. The defendant claimed that the signature that appeared in the aforementioned contract was false.

Through a judgment dated October 30, 2019, the defendant was sentenced -as a consequence of the breach of the payment obligation-, to pay the plaintiff, LTD INVESTCAPITAL, MALTA, the amount of € 6,352.09, plus the corresponding interests.

Against the judgment dated October 30, 2019, the defendant filed an appeal number 158/2021, which was admitted and processed in accordance with the procedural regulations of the place and this type of appeal.

On January 29, 2021, the Judgment absolved the defendant of the plaintiff’s claims.

 

Legal grounds.

 Assessment of evidence. The defendant, on appeal, alleged an error in the assessment of the evidence in relation to the signature of the contract, insisting that it was false, that it was not an electronic signature, but a forged manual signature.

Lack of authenticity of the signature. The defendant’s argument on appeal was based primarily on denying the authenticity of the signature and, therefore, denying the obligation to answer the plaintiff’s claim. In this regard, the burden of proof of the obligations attributed to the defendant to fulfill, fell on the plaintiff, who must prove the facts constituting the basis of his claim.

Specifically, in relation to the lack of recognition of the signature in a private document, the rule is that the injured party – in this case, the plaintiff – should have obtained the evidence that is useful and pertinent to verify the authenticity of the defendant’s signature, by an expert’s opinion and by not doing so, the authenticity of the signature was considered on credited, consequently lost the case.

 

Analysis of the case – the validity of the e-signature

 The effectiveness of an electronic document depends on the way in which it has been signed. A “recognized electronic signature” is considered an advanced electronic signature based on a recognized certificate and generated by a secure signature creation device, in accordance with the applicable law.

The case provides important concepts since, nowadays, the digitization of services and the use of new technologies have helped to facilitate the procedures of all kinds, including commercial ones. However, they also open a window for fraud and identity theft, which leads us to the need for users to have the necessary legal tools to be able to have legal certainty regarding the authenticity of the documents that are executed by an e-signature and, where appropriate, demonstrate such authenticity when it is unknown.

Both in Spain and in Mexico, new technologies have become important in various scenarios, so it is important to comply with the burden of proof that corresponds to the refusal to recognize the signature in an electronic document, and to provide the appropriate and expert evidence that verify the authenticity of the means used in accordance with the law. For this reason, it is very important to have expert advice in cases such as the one discussed here to avoid complications in legal proceedings.

 

 

Alejandro Linares Caraballo

(alinares@ecija.com)

 

Mauro González Luna

(jgonzalez@ecija.com)

 

Jennifer Hamed Kassian

(jhamed@ecija.com)

 

Edwin Pineda Granados

(epineda@ecija.com)

ECIJA Mexico, S.C.[1]

***

[1] All rights reserved, ©, ECIJA México, S.C., Insurgentes Sur 1605, Piso 10, Módulo D, Benito Juárez, Ciudad de México, C.P. 03900, 2021. All rights reserved. Any reproduction, distribution, public communication, public disclosure, transformation, whether total or partial, translation and any and all other acts or forms of exploitation of this work are expressly prohibited, except with prior written express authorization from ECIJA México, S.C.

 



Linked partners


Alejandro Linares

view profile

José Mauro González-Luna

view profile

Jennifer Hamed Kassian

view profile

Edwin Pineda

view profile