I) CONTEXT
The COVID-19 pandemic has caused momentous changes to the modern world that ultimately open the door to a new normal. Over the past two years, we have witnessed technological changes and digital adaptation that we did not think would come so quickly. The phenomenon of “Digital Transformation” is a reality for society as a whole. Specifically in the legal world, a practice that facilitates the granting of consent between absent persons has been accelerated. The practice I am referring to is the electronic signature.
In order to enter into contracts, agreements and other legal acts, it is necessary that the parties give their consent. Consent may be given tacitly or expressly. The most commonly used legal form for granting consent, in an express manner, has always been the autographic signature of the parties.
With the pandemic, obtaining autograph signatures was complicated for a number of reasons, such as people being teleworkers or being in different locations. Faced with this situation, many law firms began to implement the electronic signature provided for since 2003 in Articles 89 and 89 bis of the Commercial Code. The use of this tool did not take long to reflect the benefits and convenience of its implementation.
II) REGULATION
The electronic signature is regulated in Title Two, Chapter I of the Commercial Code, which goes from Article 89 to Article 95 of said legal code. Broadly speaking, the legislation provides for the concepts, validity, evidentiary capacity, sending and receiving, etc. of data messages, including electronic signatures.
As regards the electronic signature, the law defines it, broadly speaking, as the data contained in a data message that is used to identify the signatory in relation to the content of the data message and to indicate that the signatory approves the information contained therein.
The most important aspect of the regulation of the electronic signature is that the law attributes to it the same legal effects as the autograph signature, being equally admissible as evidence in court. Likewise, the legal effects, validity or binding force of the electronic signature cannot be denied.
Since it has the same legal effects as the autograph signature, it can be used in the same way, i.e., for the execution of any commercial act such as the incorporation of a commercial company, the signing of commercial contracts, the signing of minutes of meetings, among others.
It is relevant to highlight that companies that carry out the digitalization of documents and conservation of data messages, used to sign documents with electronic signature, must be subject to NOM-151-SCFI-2016, which establishes the requirements for the conservation of data messages and digitalization of documents.
To implement the use of the electronic signature, the user can download the application or enter the portal of the companies that carry out the digitization of documents, once entered they must create an account that will be associated with an email and then they can upload documents to the portal to be signed electronically by the signatories, who in turn must enter with their accounts to sign the document.
Finally, we must not lose sight of the fact that the Federal Civil Code provides, in Article 1803, that express consent may be expressed by electronic means or any other technology.
III) BENEFITS OF ELECTRONIC SIGNATURES
The electronic signature is nowadays a reality, used by thousands of people who opt for the convenience and benefits it offers. Some of the most relevant benefits are the following:
A) Relocation: Signing with electronic signatures avoids the need for the parties to travel to a location to sign the documents, saving time and money for the signatories.
B) Evidentiary elements: The electronic signature has more evidentiary elements than a handwritten signature. With the electronic signature it is practically impossible for the signer to argue that he did not sign the document in question, since when the electronic signature is used, a message is captured in the document that includes data such as the signer’s e-mail account, date, time and location at the time of signing, information on the equipment with which the signature was made, among others.
C) Ease of signing: Signing documents with electronic signatures allows signers to do it from their cell phones in a quick and easy way, by simply downloading the application in which the document will be signed and signing.
D) Preservation of documents: The use of digital signature on an electronic document has the benefit that signed documents are not physically damaged and cannot be lost. Keeping the digital contract (data message) is much easier since there is no possibility of physical deterioration.
IV) CONCLUSION
Having analyzed the benefits, effects, regulation and context of the electronic signature, we can agree that it is a very useful tool that will probably replace the handwritten signature in the coming years. Signing documents has never been so easy, and I highly recommend the implementation of this practice in all companies that have not yet done so.
