A court rejects the abbreviated court proceeding to enforce a loan agreement signed electronically
By Mariano Peruzzotti, and Mateo Darget.
On December 14, 2021, the Civil and Commercial Court of San Isidro in the Province of Buenos Aires rejected a request for an abbreviated proceeding aimed at enforcing repayment of a loan agreement signed electronically. The ruling highlighted the need for a digital signature to ensure the authorship and integrity of these kinds of documents.
Facts
In re “Afluenta SA v Celiz, Maria Marta” the plaintiff requested the preparation of an abbreviated proceeding aimed at collecting a loan. The company alleged that it had granted a loan to the defendant by means of an agreement that had been signed using electronic signature. The loan was not repaid in due time.
There are three different kinds of signatures in Argentina: handwritten, digital and electronic. Only a digital signature has the same legal effects as a physical/wet signature. In addition, a digital signature provides the legal —iuris tantum— presumption of its authorship and authenticity, as well as the integrity of the digitally signed document. Whenever the laws and regulations require a document to be signed, such requirement shall be met only by using a digital signature or a physical/wet signature. Electronic signatures do not satisfy the legal or regulatory requirement of a signature. Even considering that the electronic signature lacks of the legal requirements to be considered a digital signature, it is still a valid mechanism to execute some documents.
First Instance judgment
On November 23, 2021, the Judge of First Instance rejected the plaintiff’s request. The Judge based her decision on the understanding that the documents provided by the plaintiff were a non-signed private instrument and, therefore, it should not be considered a valid document for its execution pursuant to the rules of the abbreviated proceeding.
The plaintiff appealed the judgment on November 30, 2021. The company argued that it filed a loan agreement executed at distance and by electronic means as authorized by the Civil and Commercial Code (art. 1105 et seq.). Furthermore, it invoked that it met the requirements of article 518 of the Civil and Commercial Procedure Code for the abbreviated proceeding to enforce rights.
Court of Appeals’ ruling
On December 15, 2021, the Court of Appeals rejected the plaintiff’s appeal by considering the following:
- Argentine law allows the execution of distance contracts by means of electronic means or other similar technology, even in consumer contracts.
- There is no prohibition to execute a loan agreement through electronic means.
- The current trend to obtain the user or client’s consent in platforms and applications is through a checkbox. This requires prior registration on a site and validation of the person’s identity.
- The declaration of will in these platforms and applications is obtained by clicking on a button that implies the acceptance of general terms and conditions that have already been predetermined by the offeror.
- Due to its complexity, generally a document signed electronically is not self-sufficient and thus it cannot allow the use of the abbreviated proceeding to enforce rights.
- The loan agreement submitted by the plaintiff in this particular case does not constitute a private signed instrument under the definition of article 287 of the Civil and Commercial Code since it was not digitally signed. Therefore, this document is an non signed private instrument.
- Article 288, second paragraph of the Civil and Commercial Code provides that when dealing with an instrument generated by electronic means, the requirement of a person’s signature is only met through a digital signature which undoubtedly ensures the authorship and integrity of the document.
To wrap up, since the document is a non-signed private instrument and does not meet the signature requirement provided for in the Civil and Commercial Code, it is not possible to prepare the abbreviated action initiated by the plaintiff. To rely on such proceeding the plaintiff needed to obtain the handwritten or digital signature of the counterparty. However, the plaintiff has the possibility of initiating ordinary court proceedings to collect the corresponding debt.
For further information contact: mperuzzotti@ojambf.com.
