Electronic execution of contracts, e-signatures and COVID-19: Spain

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Published in Thomson Reuters

This article discusses the electronic execution of contracts and the validity of e-signatures under Spanish law in the context of the 2019 novel coronavirus disease (COVID-19) pandemic.

The crisis caused by the 2019 novel coronavirus disease (COVID-19) pandemic has had repercussions on the execution of corporate and commercial agreements by legal entities. To formalise their business relationships, many companies have been forced to move from traditional wet ink signatures to the use of e-signatures. However, the existing regulations have not been amended, and there is currently no legal framework addressing e-signatures in Spain.

Main requirements for a legally binding contract

Similar to other countries with a civil law tradition, the Spanish Civil Code provides that, for an agreement to be legally binding, it must contain three essential elements:

• Mutual agreement between the parties.
• An identifiable object.
• Consideration.

In Spain, the principle of “freedom of form” applies to contracts (Articles 1278-1280, Civil Code). The Supreme Court has stated on different occasions (see for example STS, S.1ª, 22-IV-2013, rec 505/2010) that this is the general rule of the Spanish contracting system. Written and verbal agreements are allowed, with a few exceptions (such as the assignment of intellectual property rights) where the written form is required, not only for proving the document’s existence in court (ad probationem), but also for its execution (ad solemnitatem). In any case, electronic documents do qualify as written agreements, and therefore no tangible form is required.

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