Understanding the witness signature on a digital contract
Digital transformation is a reality in Brazil and, for this reason, many companies and institutions have relied on digital contracts to reduce costs and conduct business more efficiently. With that in mind, a common question is whether the signature of a witness on a digital contract is really necessary. Will it be?As digital contracts are becoming increasingly popular, it is essential to understand how the current context and the inevitable technological evolution lead to the adoption of new solutions to optimize document signing.
In this way, the digital contract it is not only a viable form of contracting, but also legally valid and enforceable like any other physical transaction. In fact, a virtual online signature platform provides several advantages for any business, notably the speed and ease with which these documents are signed. In this context, although witnesses are not always an essential requirement for the execution of a legal document, they can help solidify and authenticate a contract, providing evidence that the signatures are, in fact, legitimate and consensual. Let's see how this happens in practice.
What is the role of witnesses in a contract?
Digital contracts follow many of the same standards as traditional contracts. To have a bilateral (or plurilateral) legal transaction, there must be a “meeting of wills” in its essential terms, aimed at the creation, modification, or extinction of duties and rights. Currently, the Brazilian legal system, although it does not have specific rules for the conclusion of this type of document in electronic format, is unanimous in accepting the application of the Civil Code and the General Theory of Contracts in cases of this nature. In addition, the Superior Court of Justice itself, in its ReSP 1,495,920, recognized the economic and social importance of these agreements signed online and equated their validity to the same as agreements signed on paper. Therefore, the Civil Code clarifies that:
Art. 104. The validity of the legal transaction requires: I - capable agent; II - legal, possible, determined, or determinable object; III - form prescribed or not defended by law.
It means, therefore, that there is no legal requirement for the signature of witnesses - people who have no contractual liability or financial interest related to the transaction, to the point of serving only as a guarantee that it was a decision taken without the use of coercion - for a contract to be valid. However, with exceptions, for a contract to be considered an extrajudicial enforceable title, as provided for in art. 784 of the Code of Civil Procedure, it is essential that it be signed by two witnesses. In verbis:
Art. 784. They are extrajudicial enforceable titles:III - the private document signed by the debtor and by 2 (two) witnesses;
In other words, if it is necessary to enforce the agreed terms, the existence of witnesses makes it possible for the execution to be faster and more effective. And this is true for both physical and digital modalities. For this reason, the role of witnesses is to certify that the signatures are authentic, that the transaction was carried out freely by the parties, and to optimize any need to resolve disputes in the judicial sphere, making the title enforceable.
Who can testify?
The Civil Code, more specifically in article 228, establishes three limitations on a person who cannot serve as a witness in contracts of the most diverse types. They are:
- Children under 16 years of age;
- The close friend, capital enemy of one of the parties, or someone interested in the dispute;
- Family members — ascendants, descendants, and collaterals up to the third degree, by consanguinity or affinity — and spouses.
Therefore, not being included in the hypotheses provided above, anyone can attest that a particular operation was carried out in the correct manner. Finally, it should be noted that this decision not only increases the security of the process, but also provides support for both those involved in a possible dispute, eliminating the lengthy process of knowledge - which takes much longer to recognize the title and convict the delinquent party.
How to sign a contract digitally and with legal validity
The purpose of the digital contract is to make life easier for the actors involved and to allow agreements to be closed even if the contractors are not in the same place, optimizing processes and reducing operational costs. That said, if the parties can sign a contract remotely through an electronic signature, why couldn't the witnesses? The fact is that the same logic is applied to them when negotiating the legal business. However, before choosing a signature method for your electronic contracts, you should know your different options. Pursuant to art. 4 of Law No. 14,063/2020, electronic signatures can be of three types:I - simple electronic signature:
- a) that allows you to identify your signer;
- b) a that attaches or associates data with other data in electronic format of the signer;
II - advanced electronic signature: the one that uses certificates not issued by ICP-Brazil or other means of proving the authorship and integrity of documents in electronic form, provided that they are admitted by the parties as valid or accepted by the person to whom the document is opposed, with the following characteristics:
- a) is uniquely associated with the signer;
- b) uses data to create electronic signatures whose signer can, with a high level of trust, operate under their exclusive control;
- c) is related to the data associated with it in such a way that any subsequent modification is detectable;
III - qualified electronic signature: the one that uses a digital certificate, pursuant to paragraph 1 of art. 10 of Provisional Measure No. 2,200-2, dated August 24, 2001.
- 1. The 3 (three) types of signature referred to in items I, II, and III of the caput of this article characterize the level of trust regarding the identity and expression of will of its holder, and the qualified electronic signature is the one with the highest level of reliability based on its rules, standards and specific procedures.
- 2. Forms of revocation or definitive cancellation of the medium used for the subscriptions provided for in this Law must be guaranteed, especially in cases of compromised security or data leakage.
Thus, it should be noted that Brazilian legislation admits both advanced and qualified electronic signatures as valid, and also allows electronic signature methods to be issued by private companies elected by the signatory parties, such as Clicksign, responsible for collecting multiple authentication points from signers, as a Private Certification Authority. This methodology aims to record all stages of the signature of the signers in order to preserve the authenticity of the electronic document. Thus, Clicksign acts as an impartial system chosen by the parties in the act of electronic signature and has an innovative method for authenticating signatures on the market, allowing both modalities to be carried out via a platform with the proper collection of the respective authentication points that are easily viewed in the signature history contained in the last page of the document (“LOG”). Therefore, documents signed electronically through Clicksign have the validity established by paragraph 2 of art. 10 of MP No. 2,200-2/2001, notably because they comply with requirements for “proof of the authorship and integrity of documents”. In short, the same applies to witnesses: they can be in any location and ensure the validity of the agreement if they are using a digital signature, because with registration with ICP-Brazil, the body that regulates electronic key issues in our country, all documents that use this standard can be used as evidence before the Brazilian courts.
The (un) need for witnesses in the digitally signed contract
The business world is increasingly virtual, especially in the post-COVID era. With that in mind, digital contracts offer many advantages, including the ability to modify, manage, and store them easily. However, there are still many differences in the Courts and in the doctrine regarding the need or not of witnesses to set up an extrajudicial enforceable title. This is because, those who defend it out of necessity, argue that the digital contract, by itself, would already have the necessary tools for verifying the authenticity and presence necessary for this. As a rule, the application of article 784, paragraph III, of the CPC, has as one of the purposes of verifying the integrity of the content, however, it is a fact that currently this can already be done through of various technological resources. Minister Paulo Tarso himself, in ResP No. 1495920, even suggested in court that witnesses may be expendable since: “(...) In view of these new tools for verifying the contractor's authenticity and presence, it is possible to recognize the enforceability of electronic contracts.” (STJ, 2018). Be that as it may, with or without witnesses, in order to act prudently and prove the business relationship between the contracting parties, the digital contract, together with their respective data protection measures, brings more agility and productivity to those involved, allowing them to monitor all stages of their life cycle. Interested? Request a demo to start optimizing your processes and management today. Here, at Clicksign, all information is encrypted and in accordance with our legislation. We also have a post about automatic renewal of contracts which can help you a lot if this is a common process in your company! Be sure to check it out. Did you like our content about the signature of a witness on a digital contract? Stay up to date with all the news by accessing our blog. Until next time!
