An electronic contract: legal force, e-signature, and evidence

What to check in an electronic contract before you enter it

In an electronic contract the dispute is more often about the signature than the text: who signed the file, when, and whether it changed after signing.

What an electronic contract is

An electronic contract is a contract made in electronic form, with an electronic signature or without one (depending on what the law requires).

Under the Civil Code of the Russian Federation, a contract may be made in any form provided for transactions, unless the law sets a specific form. An electronic contract has the same legal force as a paper one if certain conditions are met.

Types of electronic contracts

1. A contract with an electronic signature

A contract signed with a qualified electronic signature (QES) has the same legal force as a contract on paper. A QES confirms:

• The identity of the signer
• That the document was not changed after signing
• The legal significance of the document

2. A contract without an electronic signature

Some contracts can be made in electronic form without an electronic signature if the law or the parties’ agreement says so expressly. For example:

• A public offer (for example, terms of use on a website)
• Contracts where acceptance is expressed by an act (for example, paying for goods)
• Contracts between individuals for small amounts

Electronic signatures: types and specifics

Simple electronic signature (SES)

A simple electronic signature is a code, password, or other means that confirms an electronic signature was formed by a particular person. An SES has legal force if:

• The law says so expressly
• The parties have agreed to it
• It is used inside an information system that meets the requirements

Qualified electronic signature (QES)

A qualified electronic signature is an electronic signature that:

• Is created using cryptographic information-protection tools
• Meets the requirements of the Federal Law on Electronic Signatures
• Uses a signature-verification key stated in a qualified certificate

A QES has the same legal force as a handwritten signature on a paper document. It can be used for any contract except those that require notarization.

What to keep as proof of signing

If the contract is signed online, collect a set of evidence in advance. In a dispute, that set is what confirms the transaction is valid.

• The original contract file with the signature and a time stamp
• A certificate-verification report as of the signing date
• EDO platform logs: who signed, from which account, and when
• Proof of the signer’s authority (power of attorney, order, constitutional documents)
• An export of the document card from the EDO system, with the status history

Advantages of electronic contracts

Risks of electronic contracts

1. Technical risks

• Loss of data if the system fails
• A system breach and a forged signature
• Problems accessing the document
• Incompatible formats

2. Legal risks

• The contract is invalid if it was executed incorrectly
• Difficulty proving the case in court
• Problems identifying the parties
• No original of the document

3. How to reduce the risks

What is specific about checking electronic contracts

When you check electronic contracts, pay attention to:

• Validity of the electronic signature: Check that the signature is valid and has not been revoked
• Identification of the parties: Make sure the contract was signed by the right people
• That the document is unchanged: Check that the document was not altered after signing
• Document format: Make sure the document can be opened and read
• Content: Check every term of the contract the same way you would on paper

When you cannot use an electronic contract

What to keep after signing

For a dispute you need the file itself, the EDO operator’s receipt, and the time mark of the signature. A signature does not fix bad terms: check the penalty, withdrawal, and the subject in the text the same way you would in a paper contract.

• The contract file in the form that was signed, not “the latest version from email”
• The operator’s receipt or a signing protocol with the date and an identifier
• A power of attorney or a machine-readable power of attorney (MChD), if the signer was not the director

If you need a general checklist for the substance of the terms (not only the e-signature), use a separate piece: how to check a contract before signing.