A Court of Appeal expressly validates the proof agreement clause included in the electronically signed contract: a first of its kind

The Douai Court of Appeal (28/04/2022 RG n°22/471) issued a judgment validating the electronic signature of a rental contract with option to purchase concluded between a professional and an individual on the basis of the convention on proof included in the contract.

This judgment provides three very interesting lessons for professionals: the first on the interest of the evidence agreement, the second on the terms of signing the evidence agreement, and the third on its content.

The terms of signing the proof agreement

The ruling confirms that the evidence agreement can be signed in native electronic form. This was, in our opinion, obvious, since the reform of the law of evidence expressly recognized the probative value of electronic documents. However, some professionals had these agreements signed in paper format prior to any electronic exchange. This ruling confirms that this practice, which is incompatible with the fluidity of a digital process, is in no way an obligation.

The content of the proof agreement

There are several models of proof conventions, of close inspiration.

It is interesting to note the content of the agreement produced in this case because it is very didactic - to the point of being somewhat redundant - and clearly caught the attention of the magistrates. They note that the document recalls " that the electronic signature is a technical process aimed at giving contracts on electronic media the same evidential value as contracts formalized on 'paper' media, and that this process makes it possible to authenticate the signatory, to obtain their consent and to ensure the long‑term preservation of the signed document in its integrity and in an unalterable manner ."

The judges then noted that " in accordance with Article 1316‑1 of the Civil Code (now Article 1367), the parties recognize that signed electronic documents have the status of original documents and admit them as proof, in the same way as documents established on paper ."

"The parties expressly agree and acknowledge that the electronic documents signed using the process described above constitute the original documents; that they are established and preserved in conditions of integrity; that they are perfectly valid between them and constitute documentary evidence within the meaning of Articles 1364 et seq. of the Civil Code. In this regard, the parties undertake not to contest the admissibility, unenforceability or probative force of the elements contained in the signed electronic documents, on the basis of their electronic nature alone. Consequently, the electronic documents referred to in these agreements constitute proof of their content, the identity of the signatory(ies), and the legal or factual consequences arising from each signed electronic document."

  So far, the wording is classic. More original, the drafter of the agreement provided for the value that should be given to the paper copies of this electronic original, called "conventional extracts": " For the purposes of the subsequent management of this contract, in all cases where electronic consultation is not possible, it is agreed by the parties that they may establish paper copies called "conventional extracts" corresponding to the literal reproduction of the original of the contract as it can be viewed in the dedicated customer area. These copies may be used, where appropriate, as a means of proof, under the conditions accepted by case law, in the state of positive law ."

The Court is completely convinced by the text since it deduces from it that "the copy of the contract drawn up on paper, including the mention of the electronic signature of Mrs DEA and Mr A, is proof of the contract, its content, the identity of the signatories and their consent to said contract, it being further noted that the vehicle was indeed delivered to them in execution of the contract on April 23, 2018, that it was returned by them to be sold at public auction on July 1, 2019, that they paid rent, and transmitted electronically when concluding the contract the copies of their national identity cards which also appear in the file ."

As is often the case in judgments relating to electronic signatures, the Court relies on a bundle of evidence to support its reasoning: delivery of the vehicle, payment of rent, etc. But the term "in addition" to announce these evidence seems to show that they were not decisive in the judges' decision, contrary to the convention of evidence.