The signature requirements pertain the legal or contractual requirements in order to make a legally effective declaration of intent or a legally binding contract.
Possibility to replace a specific formal requirement of making a binding declaration of intention
Under art. 21.2 bis, Legislative Decree no. 82/2005 (the so-called Code of the Digital Administration), recently amended in order to ensure coordination with the so-called eIDAS Regulation – EU Regulation no. 910/2014, when the written form ad substantiam (i.e. when the law imposes that a contract is entered into in writing, either for its validity or for evidence purposes) is required on penalty of nullity in the cases pursuant to art. 1350.1 nn. 1-12, an IT document must be signed with a qualified electronic signature or with a digital signature. In the other cases required by law (article 1350.1, no. 13), the advanced electronic signature or the stipulation with the additional methods referred to in article 20.1 bis) CAD [SPID] is sufficient.
Advanced electronic signature means: A set of data in electronic form attached to or linked to an electronic document, enabling the identification of the signer, and guaranteeing the unambiguous traceability to the same. The signature is created by means over which the signatory can retain exclusive control and this signature enables detection of whether the data itself has been modified after signing (Reg eIDAS, art. 26; DPCM 22 February 2013. articles 55-61).
Qualified electronic signature means: A particular type of advanced electronic signature that is based on a qualified certificate and realised by means of a secure signature-creation device (e.g. token or smartcard provided by parties qualified to do issue (eIDAS Reg, art 3.1, n 12).
Digital signature means: A particular type of qualified electronic signature based on a system of cryptographic keys, one (1) public and one (1) private, correlated with each other, which allows the holder of the electronic signature by means of the private key and a third party by means of the public key, respectively, to make manifest and verify the provenance and integrity of an electronic document or a set of electronic documents (art. 1, lett. (s), CAD).
In all other cases – e.g. an email sent by a system based upon a mere combination of username and password – the suitability of the IT document to be considered as a written document can be freely appraised in court by the judge (i.e. there is no certainty as to its value).
Presence of any specific formal requirements to effectively conclude a loan agreement
Under the Italian civil code, loan agreements are not subject to formal requirements for their validity, so that in theory they could be entered into even orally. However, the written form is absolutely common, for evidence reasons and due to the fact that interests exceeding the legal interest rate must be agreed upon in writing.
Moreover, the Italian Banking Act (Legislative Decree no. 385/1993) imposes banks to enter into their contracts in written form (or in an equivalent electronic form) and complying with detailed rules as to their terms. Failure to comply with this rule may lead to administrative fines.
It should also be noted that loan agreements are often accompanied by mortgages on real property, whose creation requires written deeds to be executed before a notary public.
Process of conclusion of a contract by using a qualified electronic signature in practice
As far as the conclusion of contracts is concerned, using a qualified electronic signature in Italy follows the same procedures applicable also in other EU countries for the same devices. Concerning providers of electronic signatures, they are subject to detailed laws and regulations, and need to be duly enrolled in the relevant registers held pursuant to the Code of the Digital Administration.
Legal consequences to a contract in case of not fulfilling formal requirements
If a contract is entered into through electronic means that fail to meet the requirements set forth for the full equivalence with the written form, the relevant document may be appraised in court. Therefore, if the contract needs the written form for its validity under Italian civil law, it may be held null and void. On the contrary, if the contract must be proved in writing, it may be impossible to provide valid evidence of the existence of the agreement, thus undermining its enforceability. In any case, it should be remembered that companies active in regulated sectors (e.g. banks compelled to execute credit agreements in “written form”) may incur sanctions should they fail to comply with the formal requirements set forth by the laws and regulations applicable to their activity.
Usual practice of signing contractual agreements in the B2B sector
In B2B transactions, there is an increasing tendency to sign contracts by means of digital and/or electronic signatures and no longer on paper.
Usual practice of signing contractual agreements in the B2C sector
Also, in B2C transactions, contracts are most frequently entered into through electronic means. The framework is, however, complex, depending on the kind of contracts at hand. E-commerce is becoming extremely widespread, and so are insurance e-policies (where consumers are required to send via email a scanned copy of the policy signed). Online bank accounts and financial contracts with consumers tend to be still signed with a handwritten signature, since consumers often do not have digital signature devices and banks tend to always request a handwritten signature in order to have certainty as to the enforceability of contracts.