In Brazil, there are still doubts about the need for witnesses in a digital contract to be valid.
In practice, in some cases it is believed that, as with physical contracts, witnesses are not required for a digital contract to be binding.
In other situations, it is argued that because it is a digital contract, that is, an electronic document, witnesses must be required for it to be considered legal.
In still other cases, it is held that the validity of a digital contract should depend on the jurisdiction in which it is made.
Let’s understand the whole context and clarify all these points.
What is a digital contract?
Digital contracts can be understood as business or agreement concluded by electronic means, that is, formed and signed by means of a mobile device or computer.
In Brazil, since 2006, it has been possible to make valid digital contracts under the law. Law 11.419/06 regulated the use of electronic signatures in the country and allowed contracts to be signed online – without the need for paper or pen.
Since then, digital contracts have been adopted in commercial and personal relationships, whether they be for buying and selling, renting, providing services, or contracting health insurance, among others.
The ease of contracting online is one of the main advantages of the digital contract. All you have to do is access the company’s website or application to do business, without the need to go to a physical store or face lines to contract a product or service.
Another positive point is that digital contracts are stored safely, preventing the loss of important documents. In addition, digital contracts can also be easily shared – just send an email to the contractor.
The role of witnesses when signing a contract
Witnesses are usually required for important contracts and documents, such as records of purchase and sale, rent, and even in the provision of services.
Its role is to make sure that the parties involved in signing the contract are aware of their rights and obligations.
In addition, the witnesses also guarantee that the contracting parties agree with the content of the contract and that there is no mistake or misunderstanding at the time of signing.
However, despite the common use of witnesses in business formalization, there is no mandatory requirement. According to article 104 of the Civil Code, the contract is valid as long as it meets three requirements:
- Be performed by a capable agent;
- It deals with an object that is lawful, possible, determined or determinable;
- Whether performed in a manner prescribed by law or not.
In other words, contracts are legally valid even if they have no witnesses. Even without their presence, the document represents a legal transaction.
However, one point of attention must be emphasized: the contract without witnesses cannot be transformed into an extrajudicial title. This, in practice, means that the parties involved will not be able to enforce the contract in court if one of the parties does not fulfill its duties.
Item III of article 784 of the Code of Civil Procedure states that “to be an extrajudicial enforcement instrument, the contract (in this context, called a private document) must be signed by the debtor and two witnesses”.
However, the requirement of witnesses for digital contracts is still a controversial subject and there is no consensus about this in Brazilian legislation. This is due to the fact that there is still no specific regulation on digital contracts in the country.
Witnesses in digital contracts: is it necessary?
Is the signature of a witness in a digital contract still necessary? This is a very common doubt among people who want to contract products and services over the Internet.
Virtual contracts are, in fact, a reality in Brazil. The ease and practicality of contracting products and services online make this modality one of the most preferred by consumers.
The digital signature is a technological resource that guarantees the authenticity of the contract and the legal validity of the contractual clauses. However, for the contract to be valid, the parties involved in the negotiation must be identified and have a valid digital certificate.
In practical terms, just as witnesses are not required for physical contracts, they are not required for digital ones either. However, it is worth remembering that the electronic signature of a digital contract has the same legal value as the physical signature.
What does the law say about the role of witnesses when signing a digital contract?
According to the understanding adopted by the Third Panel of the
Superior Court of Justice (STJ)
, in the session of judgment of Special Appeal No. 1.495.920/DF, held on May 15, 2018, the “Electronic contract with digital signature, even without the presence of witnesses, is an enforceable title”.
For Justice Paulo de Tarso Sanseverino, the reporting justice on the appeal regarding the validity of the electronic contract, STJ case law holds that the list of extrajudicial enforcement instruments provided for in article 784 of the
Code of Civil Procedure
(CPC) is exhaustive.
“It is possible to enforce electronic contracts in which the signatures of two witnesses are absent, even though the hypothesis in question is not described by the legal provision”.
It is worth noting that in order for electronic contracts to have the same validity as contracts entered into physically, they must be validated by means of a digital certificate according to the standard required by the
Brazilian Public Key Infrastructure (ICP-Brazil)
The STJ also recognizes the inconvenience of requiring the signatures of two witnesses in the context of electronic contracts, whose greatest virtue “is to enable parties that are distant from each other to maintain contractual relations quickly and inexpensively.
So that the imposition of the requirements that are normally demanded by article 784, CPC, could lead to the invalidation of digital contracts, especially in the scope of commercial transactions.
Although there is no specific legislation regarding the requirement of witnesses when signing a digital contract, the position adopted by the STJ has been used as a basis to ensure the debureaucratization of contractual relations.
evalSign: an important tool in digital contract signing and validation
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evalSign provides a fast and easy digital signature platform for sending, viewing, signing, and returning your electronic documents.
evalSign is the perfect solution for companies of all sizes
Whether you are a small business or a large corporation, evalSign can help you save time and money. In practice, there is no need to print out documents or make copies for each person.
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In practice, the evalSign solution presents as practical benefits the management of large numbers of contracts and other documents:
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6. It is a legally valid solution
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For all these reasons, it is clear that evalSign is the ideal solution for companies of all sizes. With the solution, you can save time and money, and contribute to a better world. Try evalSign right now and see how your company can benefit!
If you are looking for a fast, easy and secure way to sign documents, evalSign is the perfect solution for you.
EVAL has been developing projects in the financial, health, education and industry segments for over 18 years. Since 2004, we have offered Authentication, Electronic and Digital Signature and Data Protection solutions. Currently, we are present in the main Brazilian banks, health institutions, schools and universities, and different industries.
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