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Signature requirements
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

 The written form could with legal effect be replaced by electronic signature or digital signature.

The differences between them are the following:

  1. The electronic certificate is generated by a certificate authority that associates a person's identity with the certificate. The process requires a process of identification, authentication, and validation. 
  2. The digital signature is a code that is created when signing the document, which allows it to be encrypted at source and decrypted at destination.
  3. The electronic certificate identifies its holder, while the digital signature only identifies the signatory of a specific document or file.

Presence of any specific formal requirements to effectively conclude a loan agreement

The general rule in Spanish law establishes the principle of freedom of form, i.e. a contract may be concluded orally or in writing, requiring only the mere consent of the parties. 

However, the Spanish law requires that certain contracts, such as mortgages, be recorded in a notarial document. In addition, it is very common practice for banks to require the intervention of a notary for loan policies, since, as a public document, it is directly enforceable before the courts.

Process of conclusion of a contract by using a qualified electronic signature in practice

In Spain, as explained above, a contract can be concluded using either an electronic signature or a digital signature.

The Regulation (Eu) No 910/2014 of the European Parliament and of The Council of 23 July 2014, on electronic identification and trust services for electronic transactions in the internal market and electronic transactions in the internal market, which regulates these types of signatures and the process of its creation.

It should be noted that this Regulation does not affect national law relating to the conclusion and validity of contracts or other legal or procedural obligations relating to the form of contracts.

The main recognised Certification Authorities in Spain, from which you can obtain your digital certificate, are listed below:

  1. Electronic DNI (General Directorate of the Police).  
  2. National Mint (FNMT).  
  3. Generalitat Valenciana (ACCV). 
  4. Catalan Certification Agency (CATCert). 
  5. ANF Certification Authority (ANF AC). 
  6. AC Camerfirma.
  7. Certification Authority for the Legal Profession (ACA).  
  8. Professional firm. 

Legal consequences to a contract in case of not fulfilling formal requirements

In contracts where some formal requirements are required by law that and are not fulfilled, the contract may be considered null and void.

Usual practice of signing contractual agreements in the B2B sector

It is becoming more and more common in practice to sign B2B contracts electronically. The crisis caused by Covid-19 has probably accelerated its use.

Usual practice of signing contractual agreements in the B2C sector

It is also becoming more and more common in practice to sign B2C contracts electronically. The crisis caused by Covid-19 has probably accelerated its use as well. 

In principle, we are not aware of any type of contract, where it is usual to sign it with a handwritten signature. There are companies, such as Docusign or Signaturit, which provide the biometric digital signature. This type of signatures can be valid if they comply with the requirements for the digital signature established at the European Regulation 910/2014.  

However, most consumers do not sign by means of digital signature or electronic signature, but by means of electronic contracts. According to the Law 34/2002, of 11 July, on Information Society Services and Electronic Commerce, amended in 2020: Contracts concluded by electronic means shall produce all the effects provided for by the legal system, when consent and the other requirements necessary for their validity are met (article 23).



© 2022, Ventura Garcés. All rights reserved by Ventura Garcés as author and the owner of the copyright in this chapter. Ventura Garcés has granted to Multilaw non-exclusive worldwide license to use and include this chapter in this guide and to sublicense Lexis Nexis, a division of RELX Inc. and its affiliates certain rights to use and distribute this guide.

The information in this guide provides a general overview at the time of publication and is not intended to be a comprehensive review of all legal developments nor should it be taken as opinion or legal advice on the matters covered. It is for general information purposes only and readers should take legal advice from a Multilaw member firm.


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