Electronic signature does not constitute consent

Date : Publié par

On June 8, 2023, the Orléans Court of Appeal issued an original and very well‑argued ruling on electronic signatures (RG No. 22/00539), concerning a personal credit agreement between Carrefour Banque and a borrower. In summary:

  • It shows that the evidence file in no way demonstrates the identity of the signatory because it is not supplemented by documentation of the process proving that the authenticators (email address, telephone number) appearing there are indeed those of the presumed signatory;
  • She herself analyses, using the documents produced, the level of signature used and demonstrates that, contrary to the bank's claims, it was not a qualified signature, and therefore presumed to be reliable;
  • She criticises the lack of a link between the signed contract and the evidence file (e.g. a common reference), joining a position now constant in case law on this subject.

Also read

Electronic signature: what if we talked about the "link"?

Date : Publié par
Under French law, the definition of an electronic signature (Art. 1367 Al.2 Civil Code) implies a "link" between the act and the signature identifying its author. This notion of link is also found in the definition of the advanced signature in the European eIDAS Regulation (Art. 26) which states that the advanced signature must be "unequivocally linked to the signatory". But the meaning of this link is not obvious. We believe that it can be understood according to three approaches: a conceptual approach that projects onto the electronic signature a characteristic of the handwritten signature; a technical approach defining it via the electronic signature technology; and finally an opportunistic approach linked to the development of the on-the-fly certificate and the notion of evidence file, widely adopted by French judges.
Read more

Electronic signature: impact on litigation of the certification of the solution implemented

Date : Publié par
The rulings handed down in early September 2020 by the Toulouse (CA Toulouse, 3rd Ch., 4 September 2020, RG n°19/01990) and Lyon (CA Lyon, 6th Ch., 3 September 2020, RG n°19/06466) Courts of Appeal place a significant emphasis on the certification of the signature solutions implemented. However, it is still necessary to understand the scope of these certifications and their real impact on the reliability of the electronic signature.
Read more