Here is a quick overview of how documents can or must be created and signed in the European Union based on the Estonian Civil Code Act. Since EU law is quite similar then most of this applies in rest of the EU countries as well. Law in Estonian is in here https://www.riigiteataja.ee/akt/122032021008 and official translation in English here https://www.riigiteataja.ee/en/eli/501042021006/consolide
Different types of documents have different importance and thus also different rules on how these documents must be created. Usually the choice of contract form is free unless law requires differently (§ 77). You need to keep in mind that Upon failure to comply with the form provided for a transaction by law, the transaction is void (§ 83)
Possible contract forms are:
- Notarial form (§ 81) – Most secure signature. Document must be in written form and the signature must be certified by a notary.
- Verbal form – Least secure signature and can be used if no specific form is required and anything you want to call a signature works here. This kind of contract happens for example if you buy bread from the shop then the seller gives you bread and you pay for money for the bread. This is the level of validating your e-mail and copy pasting the image of your name in handwriting font into the PDF.
- Written form (§ 78) – requires typical wet ink handwritten signature. Estonian law has 78 legal acts that require written form documents.
- Form which can be reproduced in writing (§ 79) – Document must be on paper or you must be able to print the document, for example e-mail and SMS. It must contain the names, no signature on the document is required.
- Electronic form (§ 80) – equals written form but is electronic.
(2) In order to comply with the requirements for the electronic form, a transaction shall:
1) be entered into in a form enabling repeated reproduction and
2) contain the names of the persons entering into the transaction and
3) be electronically signed by the persons entering into the transaction.
(3) An electronic signature shall be given in a manner which allows the signature to be associated with the content of the transaction, the person entering into the transaction and the time of entry into the transaction.
Signature on these documents can also be “Digital signature”. Electronic Identification and Trust Services for Electronic Transactions Act explains the “Digital signature” definition “A digital signature shall be deemed an electronic signature that conforms to the requirements for a qualified electronic signature set out in Article 3 (12) of Regulation (EU) No. 910/2014 of the European Parliament and of the Council.”
What type of form to use in the digital age and how to go about it?
Here is simple questionnaire to help deciding on contract form
- Is notary required?
If yes then go with notary - Is it OK to have verbal agreement or can the document be unsigned but must be reproducible in writing?
If yes then any electronic form is fine. You can use plain e-mail or any of the hundreds of signature portals or even Mac preview app to copypaste your signature image into the document. - For all other options use qualified electronic signatures in digital age for legal certainity.
As most contracts do not require any specific form then you can use plain e-mail for at least 90% of the cases. You can send the other party your proposal and wait for the proposal acceptance. If you have it then you can save the e-mail securely and a contract is formed. E-mails usually have DKIM signatures so you can detect the changes in the text and you can even relate it to a specific person with a relatively high confidence level.
If you have higher document volume then you can buy a subscription of any of the hundreds of signature portals that manage this signing workflow for you. You can upload documents, request signatures from other parties, see the signing progress and archive the documents.
Another extreme is notarial signature, fortunately there is a limited set of documents that require this type of signature. If you are not sure then you can always call and ask if a notary is required. You can do all signatures in notarial form also but this is quite ineffective.
If you want to be sure that you are not breaking the law, then you can do contracts on paper or use qualified electronic signatures QES. Since paper based document management is very expensive and troublesome to manage then qualified electronic signature is the best way to go. For paper you need to have physical storage, there is manual work required etc that make it the highest cost contract type.
Qualified electronic signatures are especially good because availability is high, convenience is very similar to the simple signatures over the e-mails and the prices are not so bad at the same time prices are dropping fast.
Another benefit of qualified electronic signatures is that many signature portals that offered only simple signatures that are considered equal to verbal form are now also offering Qualified Electronic Signatures. Many of these portals use eID Easy qualified signature API so they can accept all local and popular qualified signature methods and qualified trust service providers. There are hundreds of different solutions for creating qualified electronic signatures and it takes years to build all the integrations on their own.
