The legal security of electronically signed contracts

Have you ever stopped to think about how technology can be a great ally in raising the level of legal security of contracts signed electronically?

If in the past the most recommended practice was to print the contract in two or more copies, collect physical signatures from signers and witnesses, recognize notarized firms and manage their filing, nowadays technology offers solutions that, in addition to being more practical, economic and sustainable, can provide higher levels of legal security when compared to contracts signed in the traditional way.

Well, in this article we will tell you how contracts signed electronically can be even more secure than contracts signed with pen and paper.

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Basic elements of legal security in digital contracts

Regardless of its nature, be it of provision of services, supply of materials, buying and selling real estate and furniture, technology licensing, among others, essential elements must be observed that add legal security to contracts signed in a digital environment.

In this sense, in the process of drafting and reviewing the contract, it is essential to observe whether the legal transaction reflected in the contractual instrument has legal validity and, more than that, whether this business is legal and effective.

But what requirements indicate the legal validity and effectiveness of the contract?

Broadly speaking, for the contract to be valid, we must observe some essential requirements:

• The object of the contract must be lawful, possible, determined, or determinable;
• Form of contract provided for or not prohibited by law (means by which the parties express their will);
• The parties involved must be able;
• The expression of will and consent of the parties must be free and valid.

With the ongoing technological revolution, it is possible to add technology to strengthen the security of all the elements described above.

However, in this article we will detail how technology can strengthen and increase the security level of a specific element: The validity of the formalization of the expression of will and consent of the parties.

The legal security of the expression of will in digital contracts

In the formalization of digital contracts, the technology that provides security to the validity of the formalization of the expression of will and consent of the parties is electronic signature, or, as it is commonly called, digital signature.

In the virtual context, electronic signatures play an identical role as physical signatures. They are an electronic way of authenticating the authorship of a person's expression of will (the signer), linking it to a document and ensuring that it remains unchanged.

But how can we be sure that the signer is who they say they are?

What's more, how can we be sure that the document was not changed after the signatures?

The role of electronic signature platforms

Well, digital signatures are used to:

• Authenticate authorship: Ensure the authenticity of the signer (who signs), attributing to him the authorship of the expression of will.
• Establish the link: Define the link between the signer and the content of the document, confirming the link between the signer and what is recorded on the paper.
• Preserve integrity: Certify that the signed document remains intact and was not changed after signing.

This is the context in which electronic signature platforms. Elas they are environments that provide their users with the possibility of making electronic signatures on digital documents in an agile and secure manner.

Within the process of signing digital documents, platforms must perform two main functions:

• Collect and record in the signed document the methods used to authenticate the signers, selected by the platform user and confirmed by the signers;
• Ensure the integrity of the signed document, preventing its content from being modified after the signatures are finalized.

But, after all, how can we add legal certainty to the expression of will and consent of the parties?

Well, the authentication methods are the ways provided by the digital signature platform for a signer to authenticate within a signature process.

Each platform has its own methods and Clicksign provides the following options:

At the beginning of a signature process, the user who provides the personal identification data of the signers and chooses the methods to authenticate them is the user who is sending the document for signatures, that is, the document owner.

In this way, it is user responsibility document owner choose the authentication methods to be used and enter the personal data of identity of the signatories so that they can be properly authenticated.

The more authentication methods selected by the user to authenticate the document's signers, the more secure the signatures will be.

In other words, when the user who owns the document correctly identifies the signers, providing their full name, social security number and date of birth, and, in addition, opts for robust authentication methods, they are taking steps to reinforce the legal security of the expression of will and consent of the parties.

It is interesting to make a comparison with the level of security of the analogical signature.

Let's see, in the analog world, the process basically consists of handling a pen and making a signature that only you know how to do. It is still possible to increase the level of trust of this signature by requesting notarization, by similarity or authenticity, from the registry office.

However, it should be noted that the physical signature has significant vulnerabilities. This is because there will always be a risk of copying and falsification, which varies depending on the complexity of the signature made on the pen.

It is a fact that any type of signature has vulnerabilities, whether physical or digital. However, it should be noted that a digital signature can provide significantly higher levels of security than a physical signature. There is no way to compare the security of a signature performed on a pen with the security of a digital signature authenticated with robust methods, such as Facial Biometry, or PIX, or ICP-Brazil Digital Certificate, among others.

What about the preservation of the signed document?

As mentioned before, in addition to providing greater security for the expression of will of the parties, the digital signature also provides a great benefit of legal security when compared to physical signatures: the preservation of the integrity of the signed document.

Before talking about this technology, let's return to the world of physical signatures.

Well, it is very common for a signed contract to have several pages, which can reach hundreds of pages depending on its complexity.

In this context, an important question arises: if signatures are normally made on the last page of the contract, how can we guarantee that no one tampered with the signed contract and replaced one or more pages of that jumble of clauses? That's when the rubric. Although there is no legal provision regarding its obligation, it has become a common practice in the context of physical signatures, as it can guarantee that no page of the contract has been replaced. This is because all signatories, in addition to signing on the last page, must insert a representation of their signature on every page of the contract.

*The Clicksign Platform offers its users the possibility to insert electronic rubrics in the signed document. Do you want to know how to request rubrics in your document? Check out the guidelines in our helpdesk.

This practice, in addition to being unpleasant and time-consuming, has even greater vulnerabilities than the physical signature inserted in the parties field, since rubrics are normally a simpler representation of the complete signature and, consequently, easier to copy.

Now, digital signatures eliminate that need completely. Not only that, they provide much higher levels of security by ensuring the integrity of the signed document.

There is no single correct and effective way to ensure that no changes are made to the document after the signing process is complete. A Clicksign, for example, uses two safety factors to ensure integrity:

• Every document signed on Clicksign has a Hash Code, a high-security technology, a mathematical calculation, used to encrypt the original signed document. Thus, every signed document has a unique code that guarantees that no change has been made to its content after the signers signed the document.
• In addition to the inclusion of the code, every document signed on the platform contains the Clicksign Digital Certificate, which indicates, in an auditable way, that the document was signed on the platform, and it is also possible to include authentication with Timestamp, a choice that is at the discretion of the user who owns the document.

It is worth noting that Clicksign's security practices — a pioneer in the Brazilian electronic signature market — reflect the best security, convenience, and reliability practices existing in the Brazilian market. In addition, Clicksign is the only Brazilian company in the electronic signature market to present the ISO 27001 Information Security certification.

But that's not all!

Did you know that the use of digital signatures in extrajudicial executive securities (ex: credit securities, bills of exchange, promissory notes, duplicates, etc.) Exempt the signatures of the two witnesses?

Well it is! This is a novelty brought by Brazilian legislation in 2023 and which has everything to do with the technologies that guarantee the integrity of the signed document.

Like the rubric, the signature of two witnesses was considered a security element to attest to the integrity of the physically signed document.

But you see, when using digital signatures, the integrity of the document is guaranteed by the electronic signature platform, as we saw earlier.

Therefore, it no longer made sense to continue requiring the signature of two witnesses, as this practice did not represent any impact on the security and integrity of the electronically signed document.

In other words, in addition to all the benefits explored in this article regarding the legal security of the expression of will and the technologies that guarantee the preservation of the integrity of the document, it is possible to point out another aspect that brings convenience to the contract signing process: the non-mandatory signature of two witnesses.

Start using Clicksign to increase the legal security of your digital contracts

Clicksign is the first electronic signature company in Brazil. Our solutions are ideal for those who want to reduce costs and streamline processes. Because, from any location, through a device with internet access, it is possible to subscribe in less than 1 minute.

Through our platform, you can sign documents with any type of electronic signature required by law, according to customer needs, as we use the most advanced technologies to provide greater security and legal validity to signed documents. Do you want to understand how Clicksign can help you? Try it free for 14 days!