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Translation
David Guild (Advocate)
1. Of the signature in general
In his famous dictionary, Littré defined signature as the writing under the hand of a person at the foot of a deed or document. That was in the 19th century. A hundred years later, the Robert dictionary defines it as the mark (‘inscription’) a person makes of his name to confirm the exactitude, the authenticity of a piece of writing. Sign of the times; the essentially manuscript nature of the act has been replaced by the term “mark” which, by its abstraction, can accommodate the replacement of the human hand by a machine. But, at the same time, the purpose of the signature is implicit in its definition. It attests the authenticity and the exactitude of the document at the foot of which it is appended.
Alongside the general dictionaries, there exists in France a recognised source book of judicial terms, called the “Vocabulaire Capitant”. Against the word signature, one reads there the following entry: “Application made by a person of his name, either on a deed as party to a contract or as author of a unilateral act, or on a personal work as a sign of appropriation of authorhood.” This definition shows us how closely the concept of the signature is founded in the law: either one is concerned with a work and the signature manifests the will of its author to recognise his creation and to appropriate it for himself; or a legal document is involved and the signature expresses the subscriber’s knowledge of the document and his consent to it. The signature is above all an evidential tool in relation to property (essentially intellectual property) and obligations.
These definitions show also that the signature is characterised at the same time by its materiality and its functionality, namely the appending of a name with a view to a particular aim. In that context, it is noteworthy that the legislator in general and notably the codifiers did not find it necessary to specify precisely in their texts the material and functional elements of the concept. It seems that, until the electronic age, things could be left unsaid. To sign was to write one’s name on a tangible medium to complete a legal document. This required that the human hand, the act of writing and the paper be present and take place at one and the same time.
Some precursors of the current change can nonetheless be seen. Thus, French law allows for cheques to be signed mechanically, by way of a stamp, but this required the passing of a law, considered to be a law “by way of exception”, whose extension to bills of exchange has not been sanctioned by the courts.
2. Of the electronic signature and electronic writing
It was the appearance of electronic transactions and the development of their commercial application among the wider public that called into question the forms of traditional written documents and, with them, a thousand years’ of checks and balances of the written law. This unprecedented situation has affected all lawyers in developed countries, who were simultaneously confronted by the globalisation of the phenomenon. In the space of a few years, we have seen the birth of national legislation, Community Directives, and models of uniform laws. But these texts differ materially in their approach and their scope.
Some of these special measures are content to specify the conditions under which electronic signatures may be treated as valid, without concern for integrating this innovation into the context of written evidence, and at the risk of creating conflicts to which no solution is apparent. Other, more comprehensive, measures are concerned to establish functional equivalencies between electronic and traditional signatures. This is the route followed by the model law promulgated by UNCITRAL (United Nations Commission on International Trade Law) in 1996, as well as by the European Directive of 13 December 1999 (Electronic Signature Directive, 1999/93/EC). Others took the view that the problem was not simply limited to that of the signature, because that has no meaning unless placed at the foot of a text. It is the concept itself of electronic writing that they see as requiring to be dealt with, seen from a holistic perspective encompassing the whole concept of written evidence, in which the signature is only one element amongst others. That is the route followed by the French law of 13 March 2000, which added several Articles to the Code Civil - a route where Quebec preceded us by a decade.
3. Of probative and solemn forms
These differences of breadth in the legislative purpose are not the only ones which distinguish the texts which have appeared in various places. Another division is apparent, according to whether it is evidential status or the validity of the legal document which is at stake. The law may after all treat writing and signature only as formal elements of evidence, admissible to substantiate the existence of a contract. In such a case, any failure of or imperfection in literal evidence may be supplemented by other forms of evidence (such as the evidence of witnesses, legal presumptions). The formalism of the written document is thus required ad probationem, and its absence does not carry with it the automatic nullity of the document. Sometimes, on the other hand, a written document, coupled with a signature, is necessary on the grounds of solemn form, ad solemnitatem, with the result that their absence will lead to the reduction of the irregular document.
We see therefore that the problem of the electronic signature, in its relationship to the writing which precedes it, has numerous parameters and raises many questions. It would be unrealistic to claim to cover all of these in this talk. That is why I shall limit myself to proposing some clarification of those points which currently appear the most sensitive, while knowing at the same time that the astonishing evolution of techniques and practice does not allow any long-term solutions. It is necessary therefore to conclude that the law should limit itself to laying down principles and creating new frameworks, as otherwise it would immediately become obsolete. Within these frameworks, we may expect to see detailed (and, by virtue of this, short-term) regulations, which will define the norms recognised by the law (for example, cryptography).
I – DEFINITION OF THE SIGNATURE
4. The signature may be given a double definition, the one material (of what does it consist?), and the other functional (what is its purpose?). Both these aspects can be found in legislative texts that are in the planning stage, or in force. Some of them apply only to electronic signatures, whereas others define the signature in general, in order better to emphasise that its electronic version is only one form amongst several, equivalent a priori to the manuscript signature.
This is the approach followed by the French law of 13 March 2000, which provides, in the new Article 1316-4 of the Code Civil, a definition of the signature which is general, but strictly functional. “The signature which is required in order to complete a legal document which identifies the person who appends it. It records the consent of the parties to the obligations which flow from that document. When it is appended by a public officer, it confers legal authenticity on the document.” The second paragraph of the same Article relates to the electronic signature, which it describes in the following terms: “When the signature is electronic, it consists in the use of a reliable identification procedure which guarantees its link with the document to which it is attached.”
It follows clearly from this that the electronic signature must at the same time fulfil the general functions of the signature (identification and consent or authenticity) and the particular conditions imposed on the electronic form (procedure capable of guaranteeing its integration into the document which it completes). A similar approach was proposed to the Belgian and Luxembourg legislators by the research laboratories of Namur and Luxembourg in a report of December 1998 which recommended the adoption of an Article 1322-1 into the Code Civil.
5. Since 1996, the Uncitral Model Law on Electronic Commerce has followed the same route, but in vaguer terms, and hence in a manner which is less satisfying to a jurist trained in a written system of law. Article 7 reads: “When the law requires the signature of a person, that requirement is satisfied in relation to a data message: a) if a method is used to identify that person and to indicate that person’s approval of the information contained in the data message, and b) that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated, in the light of all the circumstances, including any relevant agreement.” Even though one can find, in this laborious formulation, a certain number of key-words relating to the subject (identification, agreement, reliability…), one is nonetheless aware to what extent the Unictral Model Law differs radically from the French legislation.
The United Nations text inserts provisions relative to written documents and their signature into a law which is specific to electronic commerce, without making any link to traditional forms of writing and signature, as if the Internet was henceforth going to constitute a world apart, free from interference from all other forms of transactions. The French have taken the opposite route, by expanding, in the Code Civil, in the heart of the theory of obligations, the legal definition of writing and of the signature, in a way which includes all forms in which they can be expressed without differentiation: manuscript, typewritten, electronic or others… It is from this common source that differences may grow, in the form of specific texts, rules corresponding to electronic evidence today, and maybe to biometric evidence tomorrow, for nobody can tell where scientific developments will lead us.
6. Directive 1999/93 is more concise when it states, in Article 2, that “'electronic signature’ means data in electronic form which are attached to or logically associated with other electronic data and which serve as a method of identification”. This formula rightly places the emphasis on the necessary link between the signature and the document which it perfects, and on the guarantee of integrity which must accompany it (this is the meaning that has to be given to the word “authentification”, and not the sense of authenticity which French law reserves for documents executed by public officers). It should also be pointed out that the definition in the Directive does not include the identification of the signatory. That is because this requirement is reserved for “advanced signatures” which the Community text distinguishes from simple signatures by reference to the guarantees and effects attached to them (see below, § III).
7. The last-born in this legislative abundance is the United States Electronic Signatures in Global and National Commerce Act dated 2 June 2000, which defines its object in the following terms: “electronic signature means an electronic sound, symbol or process attached to or logically associated with a contract or any other record, and executed or adopted by a person with the intent to sign the record” (Section 106(5)). This formulation appears to take into account all the potentiality of digital communication in opening the way for oral signatures. It also seems to allow for the signature to be simply “adopted” and not necessarily executed by the signatory. One can see to what extent the binary universe, on the face of it so elementary, lends itself to diversity.
8. The common factor linking all the legislative acts dedicated to the electronic signature is that of recognising its validity in evidential terms in relation to contracts and other documents at the foot of which it appears. The stated object of Directive 1999/93 is: to facilitate the use of electronic signatures and to contribute to their legal recognition, in establishing a legal framework which will ensure the proper functioning of the internal market. The French draftsman took the view during parliamentary consideration of the matter that the law of 13 March 2000 met the requirements of the Directive and that it was only necessary to incorporate into out national law the provisions relating to supra-national authority.
We have seen that this law, integrated in the Code Civil in the section dealing with documentary evidence, treats written documents and electronic signatures as a unity. It is therefore this entity which, according to Article 1316-1 “is admitted to evidence in the same way as a document written on paper”, to which Article 1316-3 superfluously adds that “a document written on electronic media has the same evidential status as a document written on paper”. It is thus quite clear that in the French system of legal evidence, documents required by law to be evidenced in writing may henceforth be evidenced by the use of an electronic document and signature. Electronic forms are admitted as full documentary evidence, self-standing and without the need for any supplementary or complementary step.
To achieve this status, the Code Civil requires that electronic forms fulfil certain conditions. As far as the written document is concerned, it is necessary for the characters which make it up to have an intelligible meaning, that its originator be duly identified and that it be established and maintained in conditions which guarantee its integrity (Articles 1316 and 1316-1). Provided these conditions are fulfilled, documentary electronic evidence is equivalent to traditional written evidence. Despite objections from some parties, who wished documents written on paper to have a superior status, at least during a trial period, the legislator has rejected all discrimination between the different forms of writing. This principle of equality is the clear result of Article 1316-2: “When the law has not specified any other principles, and in the absence of binding agreement between the parties, the court shall regulate conflicts of documentary evidence in determining by all means available to it the most probable claim, whatever its source.”
9. This principle of equivalence between electronic and traditional documents and signatures is a major simplifying factor, which allows for a substantial economy of resources. It allows the application, save where expressly provided otherwise, to electronic forms of the rules and procedures applicable to documents written on paper. In other words, electronic documents prove no more and no less than other ones. They have the same authenticity and may be attacked by the same means.
Where an agreement is entered into informally, as is the case in the vast majority of commercial transactions, Article 1324 of the Code Civil is called upon to play the same role in relation to electronic contracts as for contracts in general. “In a case where a party denies the existence of his hand-writing or his signature, and in a case where his heirs or successors state that they do not recognise them, their verification is a matter for the courts.” That is to say that the denial of hand-writing or a signature by the party who is called upon to perform his obligations under an informal agreement is sufficient to stop the performance of obligations arising under the contract and obliges the person who claims to be entitled to their benefit to raise legal proceedings. The Cour de Cassation has always been alert to enforce this rule, most recently in a decision of 2 March 1999 (Civ. 1, 2 March 1999, Les Petites Affiches, 19 June 2000, p. 12).
The procedures for verifying hand-writing are laid down by Articles 287 to 295 of the Nouveau Code de Procédure Civile, whose provisions were conceived in the context and practice of traditional forms of writing. Nevertheless, most of them can be transposed, mutatis mutandis, to electronic forms of writing and signature. Besides, it is proposed to amplify the texts currently in force with certain rules specific to information data. It will in particular be competent for the judge to ordain the parties to produce all data registered in electronic memories which may serve to establish the truth and to authorise a technician to have access to those memories in order to retrieve the relevant documents.
10. In the end of the day, the quality of full and complete evidence given as a matter of principle to electronic documents, to the same degree as those in writing, is balanced by a certain fragility which flows from the opportunity to contest them before the courts and to the large measure of discretion given to judges in the matter. This relative fragility should not be seen as an unjust anomaly. It is probable that, in the most common transactions, electronic documents capable of being admitted in evidence will be recorded and kept by companies and not by their customers. Conscious of the fact that this one-sided approach places the consumer in an inferior position to the professional in the field of evidence, enlightened commentators consider that it is fair to allow the consumer in return a wide power to challenge any documents that are pled against him.
Furthermore, if the parties wish to fortify the electronic evidence available to them, they may use to this end a number of technical procedures which are already available to them, or soon will be.
III - ADVANCED SIGNATURES
11. Directive 1999/93/EC defines “advanced electronic signature” as an electronic signature which meets the following requirements:
a) it is uniquely linked to the signatory;
b) it is capable of identifying the signatory;
c) it is created using means that the signatory can maintain under his sole
control;
d) it is linked to the data to which it relates in such a manner that any
subsequent change of the data is detectable. Under these conditions, the
“advanced” electronic signature achieves in full its natural objectives,
which are the identification of the signatory and his consent to the document.
The quest for this degree of security underpins the Belgian and
Luxembourg project, which make compliance with these requirements a
pre-condition of recognition of the electronic signature.
French law is less strict, insofar as it limits itself to prescribing, in abstract terms, the use of a “reliable procedure” in paragraph 2 of Article 1316-4. But the same paragraph goes on the specify that: “The reliability of this procedure is assumed, in the absence of proof to the contrary, when the electronic signature is created, the identity of the signatory confirmed and the integrity of the document guaranteed, under conditions laid down by decree of the Conseil d’Etat.”
In doing this, Article 1316-4 introduces a distinction between signatures whose reliability is to be presumed and those which do not benefit from this presumption. This mirrors the difference made by the Directive between electronic signatures, according to whether or not they meet the criteria for the advanced signature.
12. Currently, the means of achieving the greatest level of security involves the use of cryptography and the use of a cipher key which makes a text incomprehensible to those who do not have a decoding key. In practice, this method breaks down into two types, depending on whether the dialogue between the parties is taking place on an open or a closed telematic network. If one is dealing with purely bi-lateral discussions, each party can have a code which operates both to encode and to decode. That is termed symmetric key cryptography. The same solution would appear to be acceptable in closed networks of the Intranet type.
But when these transactions are taking place on an open network, such as the Internet, it is obvious that the encoding key must remain secret to the person who sends the message. Recourse is then necessary to a system of asymmetric keys, of which one, termed the private key, serves to encode the message and the other, termed the public key, allows decoding. In order for the system to function, a third party certification-service-provider is interposed between the sender and the recipient. The third party fulfils several functions.
This third party is the depository of public keys. His main task is to guarantee the link that exists between the author of the message and his public key, that is to say the identification of the originator. He plays the same role as is nowadays filled by the public authorities when they legalise a signature appended on paper in their presence. Furthermore, the third party makes a tally of the number of messages passing through him; he records the date, time and duration of the period of access and issues a certificate in relation to these which provides the recipient with confirmation of authenticity. Directive 1999/93/EC gives qualified certificates a central role in the system of providing secure systems in relation to electronic signatures which it invites the member states to adopt. By giving the guaranteed signature the status of “advanced signature”, it will considerably increase its evidential force.
The future of electronic transactions will depend in large part on the efficacy of the system, notably in terms of reliability, speed and cost. Without seeking to anticipate the terms of regulations yet to come, it is likely that the certifying organisations will require to conform to a number of technical and ethical norms, will be under the direction of the public authorities and will be subject to professional responsibility if they make a mistake which results in loss to their clients.
13. The Directive leaves it to member states to adopt national measures in accordance with its requirements and invites them to take steps to ensure that documents signed electronically circulate freely in the internal market and are mutually recognised. Electronic documents entered into in the future which comply with the highest level of requirements will be more secure than contracts written on paper today.
Nevertheless, it should not be believed that advanced electronic signatures will be the only ones to find their way into the open networks of the Internet. Article 5 of the Directive stresses that legal effectiveness and admissibility as evidence of an electronic signature are not to be denied on the sole grounds that it was not created by a secure signature-creation device and was not based upon a qualified certificate issued by an accredited certification-service-provider. In my view, millions of daily transactions of small size will take place without the parties having recourse to complex security systems, as is the case nowadays with distance purchases using a credit card. The small risk will not justify using procedures which generate cost and delay; we can clearly see that use of the recorded delivery system remains the exception rather than the rule when letters are posted.
The importance in the future of verification procedures for electronic signatures should not be underestimated; their success will depend on the diligence and wisdom of the judiciary. This forecast, however, is put forward on the basis of experience , and is subject to whatever technical miracles may appear and offer us infallible, convenient and economical certification procedures.
Furthermore, it should not be thought that the future direction of electronic commerce will be limited to questions of evidence.
14. Article 1 of Directive 1999/93/EC clearly states that it is concerned with evidence of and not the validity of contracts: “It does not cover aspects related to the conclusion and validity of contracts or other legal obligations where there are requirements as regards form prescribed by national or Community law” (Article 1(2)). This extremely important reservation confirms the traditional distinction in French law between formality ad probationen and formality ad validatem. The Directive is not concerned with situations where the law subordinates the formal validity of a legal act to its being reduced to writing, with the absence of or any irregularity in the writing leading to the document being treated as null.
15. In this regard, it is clear that the French law of 23 March 2000 is concerned solely with questions of evidence and not with issues of solemn form. That results from the location of the new texts in the Code Civil in the chapter entitled “Evidence of Obligations and of Payment”, in the section headed “Documentary Evidence”. The aim of the legislator is further made clear in the preparatory and parliamentary works. Commentators are more or less at one in their approval of this strict interpretation of the scope of the law. It follows that where specific texts make writing a condition of validity of or opposition to an act, the word “writing” should be interpreted in the sense that it had at the time when the text came into force, that is to say in the traditional sense of writing on a paper medium.
In other words, the assimilation of electronic writing and electronic signatures with paper documents in the evidential framework does not have the result that all provisions requiring that an agreement be reduced to writing as a matter of solemn form are impliedly repealed. The scope of that doctrine, relatively restricted in 1804 in a Code Civil drafted by consensus, has greatly increased in the last decades with a view to protecting the consumer. Many current operations involving the supply of credit in consumer transactions require a written agreement and sometimes even manuscript endorsements (amount of the loan, and provisions relating to security and guarantees). It is clear that this increasing formalism will restrict the development of electronic commerce.
16. It is this threat that was seen by the authors of the European Electronic Commerce Directive of 8 June 2000 (2000/31/EC) and one that they aim to exorcise by appropriate measures. Article 9 requires member states to ensure that “the legal requirements applicable to the contractual process neither create obstacles for the use of electronic contracts nor result in such contracts being deprived of legal effectiveness and validity on account of their having been made by electronic means.” By virtue of being expressed in such general terms, this measure is capable of destroying at a stroke all the formalism ad validitatem of the Community member states.
It is true that Article 9(2), after several changes to the drafting, allows certain exceptions to the principle: contracts governed by family law or by the law of succession, contracts requiring by law the involvement of courts, public authorities or professions exercising public authority (e.g. the notariat), contracts of guarantee and collateral securities furnished by persons acting for purposes outside their trade, business or profession, contracts that create or transfer rights in real estate, except for contracts of location. This list does not impose any requirement on member states; it limits itself to giving them the right to derogate, within the scope just mentioned, from the provisions of Article 9(1).
As far as France is concerned, the preparation of the internal law that will integrate the Directive into national law is under way. It is likely that the legislator will make use of most of the exceptions permitted by Article 9(2). But there will be a delicate operation involved in co-ordinating this with the other texts that will allow in parallel the possibility of creating actes authentiques by electronic means. It is thus a long process of legislation and regulation that has just begun. After all, it is not impossible that some discrepancies between the older Directives and that of 8 June 2000 will appear; for example, with the Directive on electronic signatures (99/93), that on the processing of personal data (95/46), on consumer credit (87/102) and on the protection of consumers in respect of distance contracts (97/7).
17. The United States Electronic Signatures in Global and National Commerce Act, which will come into force on 1 October 2000, seems to strive to achieve a compromise between the contradictory demands of E-commerce and transactional security. Section 101(a) states that notwithstanding any contrary provision, in any transaction in or affecting interstate or foreign commerce, a signature, contract or other record may not be denied legal effect solely because it is in electronic form. In this, the text follows the line laid down by Uncitral and Directive 2000/31/EC.
But paragraph (b) of the same Section states that the preceding rule is not to be an obstacle to the use of paper and does not require any person to agree to use or accept electronic records or electronic signatures, thereby giving the party concerned a right of refusal. However, paragraph (c) adds that, even where there is a legal provision requiring the provision of information to consumers in writing, the use of an electronic record will be valid, subject to a wide range of precautions designed to educate the consumer so that he may provide an informed consent to the electronic transaction.
Furthermore, Section 103 of the law contains a narrow list of exceptions to Section 101, which reflect in part Article 9(2) of Directive 2000/31/EC. There is no doubt that the draftsmen of the Community law were influenced by the American legislators.
That being the case, it is difficult to predict how far the expansion of electronic forms in the law of contracts and obligations will go. If we assume that informal agreements will be subsumed into them, will electronic means pierce the barrier of the acte authentique?
V- THE ACTE AUTHENTIQUE AND ELECTRONIC DOCUMENTS
18. The acte authentique is defined in Article 1317 of the Code Civil, whose wording has not changed since 1804, as “an instrument which has been drawn up by public officers having the right to draw up instruments in the place where the instrument was written, and with the required formalities”.
As far as notarial actes are concerned, which are of particular interest in the context of contracts and obligations, the formalities referred to in Article 1317 are regulated in minute detail by a decree of 26 November 1971. They require multiple signatures and initials (paraphes manuscrits), not only on the original (public version) of the document but also on copies of it that will be delivered, as also the keeping of a paper index book (répertoire). The decree goes so far as to lay down the quality of the ink and paper, all of this on pain of nullity. In a word, we are at the heart of traditional formalism ad solemnitatem, and at the other side of the world from electronic transactions. However, to general surprise, the legislators added an unexpected provision to the law of 13 March 2000. Article 1317 of the Code Civil now contains a second paragraph, which states: “It (the acte authentique) may be drawn up on electronic media if it is established and conserved in conditions laid down by decree of the Conseil d’Etat”. Since then, the Ministry of Justice has set up working groups tasked with studying the possibility of applying electronic treatments to actes drawn by notaires, to the actes of huissiers, the registers of births, deaths and marriages and to judgements. So far, it is only possible to describe in outline the problems that require to be solved.
19. As regards the formalities required by the current texts, several questions must be asked at the start in order to set out the possible uses of electronic writings by the Notariat:
· What
is indispensable as far as the requirement of authenticity is concerned?
· What,
in terms of authenticity, is incompatible with electronic applications?
·
May one dispense with certain solemn requirements or
replace them with “functional equivalents” without
altering the concept of authenticity and reducing the standing of the acte
authentique?
20. To shed some light on these problems, we can distinguish several situations.
First of all, anything that takes place before the acte is concluded has nothing to do with the question of authenticity. The negotiation period requires no particular formality, apart from recording the advice given by the notaire in implement of his professional duties. One may therefore easily imagine the development of distance negotiations by e-mail, audio or video conferences, whose recording will constitute the black box of notarial navigation. It is equally easy to conceive plans and photographs of buildings or other properties circulating on the Internet or on a professional Intranet, as it the case with some objets d’art on public sale.
Similarly, what happens after the contract is entered into may escape from the grasp of the texts relating to new technologies. Some notaires' offices, at least in Paris, have access to businesses which scan documents and reproduce them in digital, read only, form. We already have arrangements in place which appear very reliable and where new techniques will no doubt only lead to an increase in capacity and security. (If there is a problem, it is more on the side of the readers than the medium, because of the fact that the equipment used may be out-of-date).
We know that it is possible to capture, by use of a scanner, either the image of the text, in the manner of a photocopier, or the text itself, character by character. It is clear that it is the capturing of the image that should be retained, as this represents the reliable and lasting copy of the original. One can thus create, in parallel to the traditional legal minute book (minutier) that requires to be kept as a record of texts, a digital minute book, from which engrossments, authentic copies and ordinary copies can be produced. Powers of attorney and other documents annexed to the document can be treated in the same way.
It is equally possible to create an electronic version of the directory in parallel to the traditional form contemplated by Article 22.
The real difficulties in applying the new technology to the acte authentique are thus not to be found at the stages before the contract is entered into, nor after it is entered into. While certain solemnities may be required in either stage, these formalities are extrinsic to the actual creation of the acte. They are peripheral to the authenticity of the acte. It is also highly desirable to experiment with electronic versions of the index book and minute book, without at the same time abandoning the forms required by the legislation in force during this trial period. Lessons learnt from these experiments can only assist in better defining the instruments called upon to take over, sooner or later, from the registers we have today. But even so, the job of these instruments will be to identify or conserve documents, not to complete them.
21. The heart of the problem lies in the creation of the acte authentique. Its effect flows from the simultaneous presence of the parties and the public officer (officier public) (or of an authorised clerk), in order that the solemnities laid down by the texts may be observed. Legal authenticity cannot exist without the physical presence of the contracting party before the privileged witness qualified to render the acte admissible in evidence. This central point being an essential requirement, it is around it that it is necessary to create possible adaptations of current forms for use with the technologies of the future.
On the evidence available, it seems that solutions will be more or less easy to find, depending on whether the acte requires to be entered into at a single notaire’s office, or whether it is desired to conclude it at a distance.
The drawing up of the acte on the keyboard of a computer is already part of custom and practice, thanks to the use of information technology and word processing. The reading of the acte by the parties or by the public officer can equally as well be done on a screen as on paper. If the reading should reveal any errors or omissions, it can be corrected immediately on the keyboard, and a perfect copy made, so dealing, circumstances permitting, with the problem of deletions and alterations.
Besides, these electronic procedures can be interspersed with paper versions of the text, both during preparation of the acte, and after its completion. In the end of the day the paper version allows the signatures to be appended, and the notaire’s seal to be adhibited in the traditional way. Moving on from there, it is easy to create in parallel a minute book (minutier) on paper and its digital clone. From this viewpoint, where one is combining the two approaches, all that is needed is some minor variations to the current legislation.
22. But one may also strive towards something that is entirely electronic, that is to say the completion of the acte on the keyboard and on the screen, thus dispensing with paper altogether. That is where the problem of the electronic signature comes in, and this is not resolved in any way by the new provisions of the Code Civil, which relate only to probative and not to solemn forms. In fact and in law, this problem does not arise in identical terms for the notaire and for the parties.
As far as the notaire, and possibly authorised clerks, are concerned, the use of cryptography seems to provide an acceptable solution both as regards signature and the seal, each of which is required by current legislation. In my view, this double solemnity, which involves the good faith of the public officer towards the state, the parties and third parties, is, on a formal level, the essence of legal authenticity.
As for the signature of the contracting parties, as also of witnesses to the document in applicable cases, several solutions may be envisaged. The simplest would be to record their signature on the keyboard (perhaps by vocal means in the future) against an affirmation by the notaire or the clerk that the signatories had full knowledge of the acte and that they expressed and formalised their consent accordingly. It is not clear that things should be complicated by making the signatures of the parties and the witnesses subject to a requirement of encryption. After all, technical progress suggests that effective identification procedures, equally apt to identify the person in question as the traditional signature is, will be available sooner or later.
In reality, the logic of the acte authentique gives a secondary role to the signature of the parties. At a time when we are dealing with third party certification-service-providers, qualified and beyond suspicion, we need to recognise that the ministerial officer present at the completion of the acte which he witnesses, delegatory of the power of the state, required by it to verify the content of contracts, their time and place, the identity of the parties and to certify the reality of their consent, the person who for time immemorial has been called the privileged witness, is the third party certification-service-provider par excellence. He was not known by this name, as the word did not exist, but from the time before that when others were created, the third party certification-service-provider existed already in the person of the public officers.
One might go so far as to say that the signature of the parties is only a secondary element in the acte authenthique, because its double role of identification and acceptance of the contents of the acte is fulfilled by the affirmation of the notaire. That being the case, it seems possible to accept without great difficulty the electronic version of an acte authentique entirely created in the office of the notaire who witnesses it.
23. It is nevertheless clear that, for many, the use of electronic media is synonymous with remote data processing, so much so that its most innovative use is to be found in the shape of the distance contract. That which will become everyday practice as regards informal contracts will represent a temptation for actes authentiques. Here, the risks are material, as they highlight the distinction between the convenience of long distance transactions and the security that is of the essence of legal authenticity. If one accepts that the essence of the notarised acte authentique relies on the physical presence of the public officer at the time and place of the giving of consent, it is necessary to be extremely careful not to strip the notion of the acte authentique of the very thing that justifies the particular force given to its effect.
Currently, parties who cannot travel, or do not wish to do so, arrange for a power of attorney to be prepared, which is sent by the notaire who drafted it to his colleague who will witness it.
The power of attorney is an authentic document, capable of being created in electronic form according to the procedures referred to in paragraphs 21 and 22 above. Progress towards completion of the preparatory stages of a transaction, notably the communication of the draft document and the submission of the power of attorney, is certainly something that can be achieved electronically. All that is required is to bring to this part of the proceedings the maximum possible security in order that there may be no doubt as to the reliability of a title based on an acte authentique. That is to say that the intervention of a third party certification-service-provider of the highest level will become an essential step along the road taken by the electronic document.
In summary, so long as the document does not leave the office of the notaire who prepared it, there is no need for an person to certify it other than the public officer himself. Things are different, and the bringing in of a third party is necessary, when the document travels; that is the price of movement. Note in passing that the Notariat should be able to organise its own system of certification, provided the conditions laid down by the competent authorities are respected.
Bolder measures will no doubt be conceived and sooner or later put to the test. One can think of a system of “interactive” powers of attorney, allowing for identical actes to be drawn up at a distance in duplicate or triplicate, and recording that they have been allowed to be admitted in evidence by different notaires. Above and beyond that, one is entering into the minefield of technical fiction: for example, the simultaneous creation in real time of authentic distance contracts, combining video conferences, E-mail and other technologies carrying writing, pictures or words. One step further and one jumps across to international contracts which raise new problems touching on the language of the contract, the applicable law, and jurisdiction.
This paper was given at Franco-British Lawyers Society Colloquium in Edinburgh (September 2000) on The Search for Truth and Justice.