An electronic contract entered into without the signatures of two witnesses – a requirement set forth in the Code of Civil Procedure (CPC) – has legal validity. Therefore, it may be enforced. This was the understanding of the justices of the 3rd Panel of the Superior Court of Justice (STJ) when judging a case involving the enforcement of a debt arising from a loan executed in an electronic contract with only the digital signature of the parties.
According to a report published by the newspaper Valor Econômico, it is one of the first known rulings to recognize the possibility of a private instrument being enforced directly without the signature of witnesses.
The decision was rendered in the judgment of an appeal (REsp No. 1495920) by the Federal Economists’ Foundation (Funcef), which filed an enforcement of an extrajudicial title in the amount of R$ 32.37 thousand, based on an electronic contract executed over the internet.
Read also:
STJ recognizes the validity of a digital contract for debt enforcement
The proceeding was dismissed by the court of first instance, without a ruling on the merits, on the grounds that the contract could not be considered an extrajudicial enforceable title because it did not have the signature of two witnesses – as required by Article 585 of the 1973 Code of Civil Procedure. The judgment of the Court of Justice of the Federal District (TJ-DF) upheld the decision. The foundation then appealed to the STJ.
For attorney Estefânia Ferreira de Souza de Viveiros, of Viveiros Advogados Associados, who represents Funcef, the decision signals that the STJ has begun to recognize the equivalence of digital contracts to physical ones for collection purposes, allowing enforcement, which is a faster means than a collection action. “The decision is important and innovative, as the state courts had been deciding to the contrary,” she says.
In the CPC/73, according to Article 585, extrajudicial enforceable titles include public deeds or other public documents signed by the debtor and private documents signed by the debtor and by two witnesses, among others. In the current code, of 2015, the analogous provision is Article 784, according to which extrajudicial enforceable titles include private documents signed by the debtor and by two witnesses.
Electronic contract does not indicate witnesses
In his vote, the rapporteur, Justice Paulo de Tarso Sanseverino, states that the electronic contract, as a result of its particularities, among which the fact that it is entered into remotely and electronically, does not bring the indication of witnesses, which, in his understanding, does not preclude its enforceability.
“The truth is that neither the Civil Code nor the Code of Civil Procedure proved to be fully permeable to the prevailing business reality and, especially, to the technological revolution that has been experienced regarding the modern means of executing transactions. They no longer use paper, but are embodied in bits,” says the justice in the decision.
Source: Valor
← Back to blog