Article 784, III of the Code of Civil Procedure establishes that a private document signed by the debtor and by two witnesses constitutes an extrajudicial enforceable instrument. However, on June 13, 2023, Law No. 14,620/2023 came into force, introducing an important amendment to the Code of Civil Procedure by inserting paragraph 4 into Article 784:
“In enforceable instruments constituted or attested by electronic means, any form of electronic signature provided for by law is admitted, and the signature of witnesses is dispensed with when their integrity is verified by a signature provider.”
This amendment ratifies the understanding already adopted by the case law of Brazilian courts regarding the validity of contracts constituted or signed electronically as extrajudicial enforceable instruments.
In this sense, the law ratifies the fact that electronic contracts may constitute an extrajudicial enforceable instrument. A further note should be made regarding such contracts, given that any form of signature provided for by law is admitted.
According to the electronic signature law (Law No. 14,063/2020), signatures may be classified into three categories: simple, advanced, and qualified. The simple form, most frequently applied in contracts, links the identity of the signatory through any electronic element or data message, and may be accepted in court. The advanced and qualified forms, on the other hand, make use of certificates.
In the advanced form, the certificates are not issued by ICP-Brasil, while the qualified form uses certificates from authorities accredited by ICP-Brasil, pursuant to Article 10, § 1 of Provisional Measure No. 2,200-2/2001.
Another important point is that the aforementioned amendment to Article 784 of the Code of Civil Procedure has come to dispense with the signature of witnesses, provided that their integrity is verified by a signature provider.
It should be noted that the lack of necessity for witnesses is justified, insofar as electronic contracts are generally signed remotely and, therefore, without the physical presence of the parties involved.
Nevertheless, it is always worth remembering that such a situation may give rise to questions regarding the authenticity and the proof of the expression of the parties’ will (an essential factor in contracts).
Thus, it is advisable to use reliable signature providers, whose platform contains an effective capacity to verify the identity of the signer, under penalty of the instrument losing its certainty, an essential requirement for the formation of the enforceable instrument.
By Alberto Feitosa and Glauber Ortolan
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