eSignature Legality Summary
eSignatures are legally valid and admissible in the court of law. India follows a hierarchical root of trust model where eSignatures or digital signatures issued by a Certifying Authority are considered legally valid. Specific use cases for eSignatures are indicated in the IT Act.
Under Argentine law, documents and contracts that do not have a specific legal form requirement can be executed in the fashion agreed between the parties, such as verbally, electronically or in a physical paper document) (Section 1017 of the Civil and Commercial Code). Specific legal forms can be requested in the form of hand-written signature or, in some cases, public deed. Digital signatures (QES) are considered effective to fulfill any hand-written requirements required by local regulations [Section 3 of the DSL], but will not be sufficient to substitute public deed requirements. Instruments signed with digital signatures are presumed to be signed by the signatory registered with the certifying licensee, and that the content remains unaltered. In the case a party denies the authorship of the digital signature, then such party must evidence their position (Sections 7 and 8 of the DSL). Instruments signed with other electronic signatures do not have these legal presumptions. The DSL expressly states that if a party denies the authorship of an electronic signature, then the enforcing party must prove such authorship to the Courts (Section 5 of the DSL). There are no specific regulations in Argentina on electronic agreements, other than the general provisions of the Civil and Commercial Code. In principle, electronic agreements have the same legal status as written agreements (Section 1106 Civil and Commercial Code). Nevertheless, the requirement on electronic agreements would be satisfied by digital signature (QES), as it provides authorship of the signature and integrity of the instrument (Section 288 of the Civil and Commercial Code). Electronic agreements signed with digital signatures (QES) shall also have the same evidentiary status as agreements signed in writing (Section 314 of the Civil and Commercial Code). Although electronic agreements signed with electronic signatures are valid from a legal standpoint, electronic signatures do not have the same level of enforceability as digital signatures. To prove a valid electronic agreement/electronic signature, the parties will have to present evidence in court. Enforceability of such types of agreements or signatures will depend upon the extent to which the enforcing party is able to produce evidence of its existence and unaltered content.
The Information Technology Act, (established in 2000) in Indian law highlights that a handwritten signature isn’t always needed for a contract to be considered credible, and that contracts can’t be refused for simply being electronic. They’ll usually be seen as such as long as legally able individuals have reached an agreement (this can be by agreeing verbally, electronically or by physically signing something). Under Section 65B of the Evidence Act (1872), e-signature solutions can be used to give electronic records that are admissible as evidence to support contracts in court.
Use Cases for eSignatures ?
Use cases where an SES is typically appropriate include:
- Speedy HR document preparation with preapproved templates, easy update of each employee, new employee onboarding processes as well as 360 degree view of employee files.
- End user agreements including sales & service terms, new retail account opening documents, invoices, shipment details, user manual, EULAs, policies
Use Cases for Qualified Signatures ?
Use cases where an AES is typically appropriate include:
- Purchase, procurement and commercial agreements including invoices, trade and payment terms, certificates, NDAs, sales & distribution agreements, order acknowledgements.
- Real estate lease agreements for residential and commercial purpose
Use Cases that are not appropriate for Electronic Signatures
Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.
- Handwritten - negotiable instrument, other than a cheque (IT Act not applicable)
- Handwritten - power-of-attorney (IT Act not applicable)
- Handwritten - trust deed (IT Act not applicable)
- Handwritten - will or any other testamentary disposition (IT Act not applicable)
- Handwritten - Any contract for the sale or conveyance of immovable property or any interest in such property (IT Act not applicable)
List of Local Trust Service Providers
| Institute | Regulatory Body/CA/DSC Providers | Supported by emSigner | Website |
|---|---|---|---|
| Ministry of Electronics and Information Technology - Controller of Certifying Authorities | Controller of Certification Authorities | Yes | http://www.cca.gov.in/cca/ |
| eMudhra. | CA | Yes | http://www.e-mudhra.com/ |
| NSDL | CA | Yes | https://www.nsdl.co.in/ |
| Capricorn | CA | Yes | https://www.certificate.digital/ |
| CDAC | CA | Yes | https://esign.cdac.in/ |
| (n) Code Solutions | CA | Yes | http://www.ncodesolutions.com/ |
| National Informatics Centre | CA | Yes | http://www.nic.in/ |
| IDRBT | CA | Yes | http://idrbtca.org.in/ |
| Safescrypt | CA | Yes | http://www.sifytechnologies.com/ |
“Digital Signature” means a transformation of a message using an asymmetric cryptosystem such that a person having the initial message and the signer’s public key can accurately determine
(a) whether the transformation was created using the private key that corresponds to the signer’s public key;
(b) whether the message has been altered since the transformation was made
[1] An AES is an “advanced electronic signature”, a type of electronic signature that 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 are under the signatory’s sole control;
(d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.
[2] A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as ‘qualified’ by either that government or a party contracted by that government.
External Resources
http://lawcommissionofindia.nic.in/1-50/report13.pdf
eMudhra, and all associates including agents, officers, employees or affiliates, are not liable for any direct, indirect, incidental, special, exemplary or consequential damages.