In an appeal filed by the Fundação dos Economiários Federais (Funcef), the Superior Court of Justice decided that a digitally signed contract does not depend on the presence of the signatures of two witnesses to be considered an enforceable instrument, as determined by article 585, II, of the Code of Civil Procedure of 1973 (corresponding to article 784, III, of the new code).
The rapporteur of the case, minister Paulo de Tarso Sanseverino, pointed out that neither the system of the previous code nor the current one are consistent with the reality that presents itself after decades of technological evolution. The massive use of technology to enter into contracts reveals a new paradigm that imposes a change in the way the Judiciary analyzes the cases. Emphasizing that electronic contracts differ only in form, the minister stated that “the digital signature of an electronic contract is intended to certify, through a disinterested third party (certifying authority), that a certain user of a certain signature has used it and, thus, is effectively signing the electronic document and guaranteeing that the data of the signed document are the same as those that are being confidentially sent.
The case tried involved a contract entered into electronically between Funcef and its debtor without the signature of witnesses. After his default, the title was subject to an execution action, which was later extinguished under the argument that the list of executive titles contained in the procedural law is exhaustive and does not include the private instrument without the signature of two witnesses. The understanding was confirmed by the second instance.
Taking a different path from the lower courts, the Superior Court of Justice considered that such a formal requirement could be unfeasible given the very nature of the electronic signature system, which does not require any further steps. In addition, he distinguished the reliability of the system and the security it gives to the contracting parties, guaranteeing that the transmitted document contains the data of the moment of signature.