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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 regulati