Advice on electronic contracting

More and more organisations are switching to electronic processes and electronic contracting. Electronic processes are fast and simple and enable you to immediately enter into agreements. Legal ICT can advise your organisation on whether a particular type of agreement can be entered into electronically and which signature should be used.

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Is a signature required by law?

In practice, most agreements are signed, but why? Under Dutch law, signatures to agreements are only mandatory in exceptional cases (such as when transferring copyrights). However, a signature does have the important function of serving as evidence. For example, a signature on a document may ensure that the court is bound to presume the accuracy of the signed document. Therefore, especially for more ‘serious’ agreements that are critical to providing evidence, a signature, electronic or physical, is advisable. But this is not really necessary for all agreements.

Legal ICT can advise you on whether a particular type of agreement can be entered into electronically and which signature should be used. Or assess whether a particular process or system for electronic contracting is valid and has been set up correctly. Our advice is always practical and, where necessary, our advisors will offer tips on setting up the process in a (more) user-friendly way.

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Can it be done electronically?

Freedom of form is a basic principle in contract law. An agreement can be made in writing, orally or electronically, provided that it involves an offer and its acceptance. But for some agreements, such as for buying a house or transferring copyrights, the law requires that they be made in writing. However, even if it is a legal requirement for the agreement to be in writing, it can usually be entered into electronically. The law sets the following conditions that must be satisfied for this to apply:

  • It must be possible for the agreement to be consulted by the parties.
  • Its authenticity must be sufficiently guaranteed.
  • The date and time of formation of the agreement (i.e. acceptance of offer) must be recorded.
  • It must be possible for the identity of the parties to be established with sufficient certainty.
  • If signing is a legal requirement, a reliable electronic signature must be used.

It is, however, very important to examine carefully whether specific legal provisions apply to a particular agreement.

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