Validity of electronic signature

The North Holland District Court recently ruled in a case where an agreement was signed by placing a digital signature on a tablet. What is the evidential value of such a digital signature?

The facts

Piggy runs a business that develops, produces and publishes software, including online customer loyalty programmes. Piggy makes these available to its customers in return for payment.

In May 2019 an employee of Piggy visited a butcher's shop. During this visit he spoke with the director about Piggy's online customer software. He showed (parts of) Piggy's customer program to the director. During this conversation the director signed a tablet which the employee of Piggy carried with him.

Piggy then sends an invoice to the butcher of over € 4000. This invoice is not paid. Piggy claims to have entered into a written agreement. The agreement and the accompanying order form were signed digitally by the butcher's shop. The butcher's shop disputes this and says it only signed to obtain information without obligation. They first wanted to see what Piggy's system involved. During Piggy's visit the agreement and the order form were not shown or discussed. The risk of misunderstandings as to whether or not an agreement is concluded, according to the butcher's shop, is the risk of Piggy recruiting customers. Piggy had approached her without being asked.

Burden of proof

The main rule is that the party invoking legal consequences of facts or rights asserted by it bears the burden of proof of those facts or rights. Piggy relied on the legal consequences of an agreement it had alleged. Because the butcher's shop disputes, with good grounds, that an agreement came into being between it and Piggy, it is up to Piggy to prove (the coming into being of) the agreement.

Evidential value of electronic signature

In principle it is sufficient for Piggy to submit a private deed: a signed document intended to serve as proof of the agreements made. It is certain that such a written document does not exist in this case. The law stipulates, however, that private deeds can also be drawn up in other ways than in writing. Even then, however, the requirement that the deed has been signed applies.

In this context, electronic signing is equated with manual signing. A condition is that the method of signing that has been used is sufficiently reliable in view of the purpose for which the electronic signature has been used and all other circumstances of the case.

Judgment of the court

A so-called qualified electronic signature (this is an electronic signature with a qualified certificate) is always equated with a manual signature. Piggy has not claimed that here is such a qualified signature. Therefore it must be assessed whether the method of signing used is sufficiently reliable. In the opinion of the judge this is not the case, because the signature was made on a tablet that the employee of Piggy carried with him in an environment managed by Piggy or a party engaged by Piggy. What happens to the signature can therefore not be verified.

The agreement submitted by Piggy cannot therefore be regarded as a private document with the corresponding binding evidential value. The same applies to the order form.

However, the court can give evidential force to both documents if it appears that the butcher's shop signed for them digitally. However, in view of the dispute, it has not been established that the butcher's shop signed for both documents.

It is clear that the butcher shop signed digitally on a tablet. However, the butcher's shop indicated that it had only signed once and that this signature had only been used to obtain further information.

In support of its claim that the butcher's shop had signed the agreement and the order form, Piggy submitted a so-called 'Certificate of Completion'. However, even after questioning during the oral hearing it was not clear what exactly this certificate confirms.

Clarity in this matter is important. After all, it appears from the agreement and the order form submitted that the licences and hardware to be delivered and the prices to be paid are not contained in the agreement, but in the order list.

It is up to Piggy to prove that the butcher's shop has entered into the agreements alleged by Piggy. The court will therefore give Piggy the opportunity to provide evidence of its claim that the butcher's shop signed both the agreement submitted by Piggy and the order form submitted by Piggy (digitally).

In anticipation of further adjudication, the court rules that if Piggy fails to furnish the evidence requested, its claim for payment of the sums claimed will be dismissed.

Conclusion

For the digital conclusion of an agreement it is best to work with a so-called qualified electronic signature. This prevents problems of proof if a discussion arises about the signing of the agreement. If you use another method of electronic signing, it is important that you check that the method you use is sufficiently reliable.

Do you have any questions or need advice about digitally signing an agreement? Please contact one of our lawyers without obligation. We will be happy to assist you.

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