Check what the documental form provides and if it is worth changing the method of concluding agreements?
Probably the most popular form of concluding agreements by entrepreneurs is the written form, consisting in personally signing the document. This does not mean that it is always required and it has its drawbacks, associated with the need to print, sign and, frequently, to send the document. The process is also time-consuming and costly. On September 2016, a novelty was introduced in the Civil Code –a documental form, which is assumed to simplify and quicken making declarations of will (for example conclusion of agreements). Below, we present how the documental form can make the life of a lot of entrepreneurs easier and why it is worth using it where possible.
What you will learn from this article:
- What is the documental form
- Why was it introduced
- How can entrepreneurs conclude agreements in the documental form
- How to care for safety through verification of signatories and use of the so-called durable media
We already wrote about other forms of declarations of will on our blog here. Documental, electronic, written form – what to keep in mind when signing documents electronically. In this entry, we will focus on the documental form and examples which meet its requirement from the viewpoint of entrepreneurs in B2B and B2C relations. We purposefully omit cases in which it is legally required to keep written form or a form certified by a notary public. On the other hand, we will simplify the notion of “declaration of will” to making decisions by entrepreneurs in the scope of conducted activity (e.g. decision regarding order, client acquisition, receipt of work, etc.).
Before the documental form was introduced
Before the documental form was introduced, a practice frequently used by companies was to specify in agreements that the written form is the form of conclusion and amendment of agreements. In such documents you could often find points that sounded more or less like this:
This agreement was made in writing or else shall be null and void.
All amendments to this agreement must be made in writing or else shall be null and void.
It was done like this because it was the only known mechanism ensuring invariability and unambiguity of the content of the agreement itself and its later amendments, which made it easier to act in case of a dispute or assertion of rights before court. In the vast majority of decisions, the written form is unnecessary. The companies can also conclude agreements in oral form. However, proving content of agreements in court is in that case much more difficult. It should be noted that sometimes the written form is required; then, it is clearly defined by provisions of the law (e.g. a specific work contract with transfer of copyright must be made in writing or else will be null and void).
A common practice used by entrepreneurs is to print a document, sign it by an authorised person, scan and send to representatives of the other company as a proof of willingness to conclude a given agreement. A document signed and handed over in such a way does not meet the requirements of a written form (we wrote more on this topic in this entry: Scanning of agreements vs. Autenti electronic signature – what differences we need to remember about?). Sending two copies by post or courier and waiting for return of one of the copies is, on the other hand, time-consuming and costly. Despite the written form of the conclusion of the agreement, the safety of such process is debatable because it is not known who has actually signed such an agreement. (we wrote more about verification of the signatories when concluding agreements online here).
Documental form and document – what is that?
What fixes the imperfections of the written form is the documental form, which gives the entrepreneurs the opportunity to make decisions in relations with clients or other entrepreneurs quickly, cheaply, efficiently and safely. The documental form allows to “sign” the document with a much broader scope of tools compared to the written form. According to Art. 77(2) of the Civil Code:
Submittal of the declaration of will in form of a document in a manner enabling to determine the person submitting the declaration shall be sufficient to keep the documental form of an act in law.
The document is on the other hand defined by the Art. 77(3) of the Civil Code as follows:
A document is an information carrier enabling to read its content.
In other words, if the content of a decision of entrepreneur or client is known (and possible to reproduce) and if it is known who made it, then the requirements of the documental form are met. The content of the decision can be expressed, according to the above, by means of:
- document scans,
- audio recordings,
- video recordings,
- text files,
- PDF files,
- publications on social networks,
- messages on chat,
- acceptance and dispatch of forms on a website.
Therefore, meeting the requirement of the documental form for agreements concluded between entrepreneurs is definitely easier than in the case of the written form, but is at the same time just as effective (provided that the type of the decision being made does not require keeping the written form for instance). If you want to conclude agreements in the documental form, it is worth changing the standard entries used in documents from:
This agreement shall be made in writing or else shall be null and void.
All amendments to this agreement must be made in writing or else shall be null and void.
This agreement shall be made in the documental form or else shall be null and void.
All amendments to this agreement must be made in the documental form or else shall be null and void.
Risks of using the documental form – how to increase safety of concluded agreements?
Thanks to the documental form, entrepreneurs can sign documents easier and faster. However, it is worth taking care of aspects connected with appropriate protection of the process and document itself so that it is impossible to challenge its effectiveness.
“I did not sign that” – verification of the signing signatory
Possibility of unequivocal indication of signatories of documents is essential to keep the documental form. In the case of documents in the electronic form, a number of features can be used for authentication, which features must be related to the document. For example, it can be the telephone number, e-mail address or IP address of the device used during signing or the login and password to the account, which was created earlier.
The importance of verification methods varies and, depending on the type of document, the parties may also want to increase the credibility of signatures through using more and more precise methods or their combinations. For example, the basic feature verifying the signatory on the Autenti platform is the e-mail address of the document’s recipient combined with the IP address and full name. The sender can increase the credibility by requiring signing with provision of a unique text message code. The code is sent to the telephone number of the document recipient and is known only to that person.
Video verification, logging in the bank account or use of a qualified electronic signature (learn more about verification methods of signatories when concluding agreements remotely) can also be used to verify the identity.
“This is not what I signed” – warranty of integrity of the document
Every entrepreneur, when signing any agreement, wants to have free access to their copy (availability) and the guarantee that the content is the same as at the time of signing (integrity). Documents signed through the Autenti platform are provided with:
- integrityby sealing the qualified electronic Autenti seal and
- availabilityby means of:
- sharing signed files on the Autenti platform
- option to send such documents to the selected e-mail address,
- downloading the file to the computer disc,
- sending the file to the cloud disc.
Documents signed and passed via the Autenti platform meet the requirements of durable media.
“I don’t know what I signed” – confirmation that the content has been read
Despite the fact that in case of declarations of will submitted electronically, the recipient does not have to read the content of the declaration of will submitted by the sender (cf. Art. 61 Point 2 of the Civil Code), a lot of entrepreneurs use protective measures which are supposed to minimise the risk of signing documents via electronic means without reading the content. For example, acceptance of the Apple Software License Agreement is possible only after scrolling the entire content. Some companies measure the time which is spent by the user on the content of the cooperation conditions to show that the client has read the content. In Autenti, the user cannot sign the document until they declare that they know and accept its content.
The documental form is a tool which is assumed to greatly facilitate making decisions which do not require a written form for instance. The natural environment for the documental form are means of electronic communication which are to allow faster and cheaper conclusion of agreements or signing of documents. In such a case, the key aspects are credibility and safety, which can be increased by using durable media and tools to verify the persons submitting the declarations of will. Using the platform such as Autenti, the entrepreneurs can significantly improve the document signing process and meet the effective legal requirements.