Nowadays the technology moves quicker than any other sector and in an ever-changing environment it is difficult for the legislature to keep up with the development of technology. In a world where contracts are easier concluded electronically, it should be kept in mind the current applicable legislation.
According to Romanian Civil Procedure Code, a (written) deed is any writing or other record that contains data about a legal act or fact, regardless of its material support or the method of conservation and storage.
Further on, the simple/privately signed deed is that which bears the signature of the parties, regardless of its support or material. Thus, the minimum and general condition of the simple signed deed is its signature by the parties.
In what concerns deeds on electronic support, Romanian law provides some further special requirements:
when data of a legal act are rendered on informatic support, the document that reproduces these data constitutes the proving instrument of the act, if it is intelligible and presents sufficiently serios guarantees to be true regarding its content and the identity of the persons from whom it emanates.
the registration of the data of a legal deed on an informatic support is presumed to show sufficient serious guarantees to be true if it is done systematically and without gaps and when the data entered are protected against alterations and counterfeiting in s way that the integrity of the document is fully ensured.
Art. 284 (1): unless otherwise provided by law, the document that reproduces the data of a deed, registered on an informatic support, makes the full proof between the parties, until proven otherwise.
Art. 266: the inscription on informatic support is admitted as proof in the same conditions as those inscribed on paper support, if it fulfills the conditions provided by law.
In order to show force of evidence, a deed written on informatic support does not mandatorily require having an electronic signature associated; the difference between the instrument on informatic support and electronic instrument is given by the fact that the first type of instrument does not benefit from an electronic signature. In practice (Bucharest Tribunal, VIth Civil Section, Decision no. 230 of 23rd of January 2018) it was held that:
When the loan contract is proved via a written deed on informatic support, the fact that the document has not been signed electronically by either party does not affect its probative force, considering that art. 282-284 Civil Procedure Code do not condition the probative force of the instrument on informatic support by the use of electronic signature;
In accordance with the provisions of art. 282 para. (1) of Civil procedure Code, the force of evidence of the document that reproduces the data of a legal document rendered on informatic support is appreciated depending if it or not intelligible and whether or not it presents sufficiently serious guarantees to be considered as true with regard to its content and the identity of the person from whom it emanates.
As per Law no. 455/2001 on electronic signature, the electronic instrument, to which an electronic signature has been incorporated, attached or logically associated, as the case may be, is assimilated to a deed under private signature or, insofar as it is recognized by the opposing party, has the same effect between those who subscribed it and those who represented their rights, as an authentic deed.
The electronic signature represents data in electronic form that serves as a method of identification, and the extended electronic signature ensures, under specific security conditions, the identification of the signatory.
Law no. 455/2001 regarding the electronic signature clarifies the following terms:
The electronic deed represents a collection of data in electronic form, between which there are logical and functional relationships, and which shows letters, numbers or any other characters with intelligible meaning, intended to be read through a computer program or other similar process, to which an electronic signature was logically incorporated/attached or associated.
The electronic signature represents data in electronic form, which are attached or logically associated with other data in electronic form and which serve as identification method;
The extended electronic signature represents that electronic signature that cumulatively fulfills the following conditions: a) it is uniquely linked to the signatory; b) ensures the identification of the signatory; c) it is created by means controlled exclusively by the signatory; d) is related to the data in electronic form, to which it is reported in such a way that any subsequent modification of them is identifiable.
Conventions on proofs
The convention on proofs is that agreement of will by which parties derogate from the legal norms related to prods of evidences, either prior to the civil trial or during its course and has the following specific features:
It cannot restrict the judge`s role in evidences matters;
It cannot restrict the legal rights of the parties in this matter; however, it can broaden the possibility of probation, if it does not contravene any mandatory norms.
For example, the Supreme Court established by Decision no. 34/2016 that the e-mail transmission by the employer of the dismissal decision represents a method of communication aptly from a procedural point of view to trigger the elapse of the term of judicial challenge of the decision, under the conditions in which the employee communicated to the employer its email address contact details and there is a use of this form of communication between the parties, without the need for express confirmation by the employee of receiving such correspondence.
Further on, at the question whether the dismissal decision communicated by electronic email must comply with the formal requirements imposed by Law no. 455/2001 (referring to electronic signature) or the transmission of the decision in accessible electronic format is sufficient, the Supreme Court considers that the decision communicated by electronic email should not comply with the formal requirements imposed by Law no. 455/2001, its transmission in accessible format being sufficient.
Thus, in relation with art. 76 of Labor Code, which requires the decision to be issued in written form and with art. 77 of Labor Code, which refers to the communication of the dismissal decision itself and not of the dismissal measure (in the sense that no other instrument can replace the dismissal decision), it is appreciated that, once the manifestation of the will of the employer is not materialized in electronic format, but in the classical form (on paper) no electronic signature is required, which must comply with the requirements imposed by Law no. 455/2001, the document representing only a copy of the document issued in the classical format.
Furthermore, should be also mentioned that there are specific areas whereby is not permitted the conclusion of electronic contracts, for example some form credit contracts.
Therefore, it is advisable the prior analysis of each instrument/contracts desired to be concluded exclusively electronically to make sure that there are no mandatory rules from which it is not possible to derogate when in comes to the electronically conclusion of some contracts.
Almaj, Iordache SCA