New forms – documentary form and electronic form

May 17, 2018

Beginning from 8th of September 2016 there are in force new provisions of the Civil Code, which introduced alongside the existing writing form the new: documentary form and electronic form. Changes can be both very useful and also very dangerous for all those entities that negotiate with their business partners using e.g. e-mail or by negotiating during a conference call.

Documentary form

According to the newly added to the Civil Code art. 77², to preserve the documentary form of legal action it is enough to make a statement of will on a document, in a manner which recognizes the person filing the statement. The concept of a document was also defined acknowledging that the document is a carrier of information enabling acquaintance with its content (art. 77³ of the Civil Code). Thus, the question arises, what is the “carrier” of information? What qualities it must have to be considered as a carrier “enabling” to read the content? In other words, in addition to existing writing forms (“paper”) document are various types of electronic records (including e.g. e-mails or text messages sent via mobile phone). In practice, this can therefore lead to the conclusion of a valid, binding the parties contract based on the exchange of e-mails. What’s more, even introduced an additional ”door” force in B2B relations, according to which if an agreement concluded between the entrepreneurs without keeping the documentary form will be immediately confirmed by one party in a document addressed to the other party, and this document will contain changes or additions to the contract not changing crucially its content, then the parties are bound by an agreement in the content specified in the confirming document, unless the other party immediately objected to this in the document (art. 77¹ § 2 of the Civil Code).

Electronic form

To preserve the electronic form of legal action it is sufficient to file a statement of will in electronic form and affixing it with a secure electronic signature verified with a valid qualified certificate. The statement of will made by electronic means is equivalent to a statement of will filed in writing, unless the law or a legal transaction provides otherwise (art. 78¹. § 1 of the Civil Code).

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