André Martin, Rafael Abdouch and Luísa de Almeida
Law No. 14.620/2023, enacted this month, changed several Brazilian acts, including the Code of Civil Procedure (“CPC”), modified to admit any type of electronic signature provided for by law in electronic enforceable instruments, being waived, in such cases, the signature of witnesses.
Extrajudicial enforceable titles are documents to which the Law attributes enforceable force, allowing the creditor to demand the obligation in court more quickly, through an enforcement procedure.
Section 784, item III, of the CPC determines that contracts between individuals, in order to be enforceable, must contain the signature of the debtor and two witnesses. Before the enactment of the new Law, there were doubts as to the validity of some types of digital signatures for this purpose, as well as the signature of witnesses in electronic contracts as well.
In 2018, the Brazilian Superior Court of Justice recognized the enforceability of electronic contracts signed within the scope of the Brazilian Public Key Infrastructure (ICP-Brasil), given the authentication of these documents through a certifying authority, which appears as a disinterested third party in the legal relationship. When deciding Special Appeal No. 1.145.920/DF, the Court established that, in these cases, the formal requirement of verification by two witnesses is not necessary if the minimum guarantees regarding its authenticity and security are observed. Now, the Legislation consolidates this understanding through law.
Brazilian legislation recognizes the validity of electronic signatures through Provisional Measure 2,200-2 (“PM”), which instituted the Brazilian Public Key Infrastructure – ICP Brasil. The PM does not prevent the use of other means that do not make use of ICP-Brasil for signing documents in electronic format, provided that they are able to ensure the authorship and integrity of the document and are recognized as valid means of signature by the parties.
This change in the legal scenario brings protection and legal certainty to the creditor, since it clarifies and expands the range of documents whose enforceability is recognized by law, in a manner consistent with the advancement of new technologies. The new legal device, therefore, aims to expand the guarantee of the principles of legal certainty, the best interest of the creditor and the reasonable duration of the process.
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