Digital contract. The 3rd Panel of the Superior Court of Justice (STJ) recognized that it is possible to enforce a debt based on an electronic contract, when judging a special appeal filed by the Fundação dos Economiários Federais (Funcef).
The entity sought to collect from a debtor on the basis of a transaction entered into electronically, but had its request denied by the court of origin. The justification of the court of first instance was the lack of the requirements of an enforceable instrument in the document, primarily with regard to the absence of witnesses’ signatures. The understanding was upheld by the Court of Justice of the Federal District.
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The foundation then took the case to the STJ. The reporting justice, Minister Paulo de Tarso Sanseverino, allowed the organization to enforce the debt directly on the basis of the digital contract, equating its validity to that afforded to agreements signed on paper.
The minister stated that procedural legislation requires only the existence of a “document” for the recognition of enforceable instruments. Thus, he concluded that the electronic contract falls within that concept and acquires the attributes of authenticity and veracity when it bears a digital signature. The absence of witnesses, in itself, also does not preclude the enforceability of the electronic contract, according to the reporting justice.
Sanseverino recognized the economic and social importance of these agreements entered into online nowadays, common in financial institutions and in various countries around the world. A large part of business today is no longer concluded on paper, but in bits, he declared.
The vote was followed by a majority, with Minister Ricardo Villas Bôas Cueva dissenting. The judgment took place on Tuesday (5/15), and the ruling has not yet been published.
Digital contract – innovation recognized
The main grounds for the ministers’ decision were the court’s attention to technological innovations, according to Bruno Batista Lobo Guimarães, attorney at Viveiros Advogados. “Minister Moura Ribeiro, in another action, had already voted against enforcement with an electronic contract and has now changed his position,” he states.
Regarding the absence of witnesses in the Funcef contract, the court understood that this point must be raised by the defense of the party against whom enforcement is sought, Guimarães highlights. The STJ should analyze the fundamental requirements for the enforceable instrument at a later time.
Professor Ruy Coppola Junior, who teaches Business Law at the Faculty of São Bernardo do Campo, considers that the STJ’s decision is the result of a social and technical evolution now recognized by the Judiciary. “Some courts of justice were not allowing these contracts to be enforced,” says the professor. “The creditor was forced to go to court with a knowledge proceeding that is long, bureaucratic and difficult.”
According to Ruy, even though it is not possible to give a real estimate because of the difference in the operation of the state courts, at least seven years usually pass between the filing and the conclusion of a knowledge action, by means of which the collection of a digital contract is permitted.
“The decision breaks this barrier, and the creditor gains time, being able to proceed directly to collection with the summons for payment. So that, from there, in the face of default, it may proceed to the acts of constriction of the debtor’s assets,” states the professor about the precedent opened by the STJ.
Source: Conjur/Mariana Oliveira
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