1.  Which documents can use an electronic signature and take legal effect?
  2. Which documents cannot use electronic signatures and take legal effect and why?
  3. What are the legal requirements for electronic signatures on documents?
  4. Are there any proposals to change the law relating to electronic signatures? 
  5. Are there any other factors which prevent documents being entered into in electronic format?

jurisdiction

France

Generally, an electronic signature can be used for all commercial Real Estate documents (with a few exceptions). This includes:

  • Sale contracts;
  • Transfer deeds (except for certain preliminary deeds in the residential sector);
  • Leases; and
  • Deeds of assignment of lease.

Real Estate documents signed electronically can be registered at the French Land Registry (“service de la publicité foncière”).

The following Real Estate documents cannot be signed using an electronic signature:

  • Preliminary deeds of sale without condition precedent for obtaining a loan; and
  • Securities.

It should be noted, the restrictions in not using an electronic signature are mostly limited to the residential sector or to documents executed by consumers. This is because French law requires the reproduction of certain specific mandatory handwritten mentions in those Real Estate documents.

The legal requirements for an electronic signature to be valid are found in Articles 1366 and 1367 of the French Civil Code. An electronic signature must:

  • use a reliable identification process; and
  • express the signing party’s consent to the obligations arising from the relevant document.

Also, obtaining the "certification" for a signature creation system needs to be obtained from the French National Cybersecurity Agency (“Agence nationale de la sécurité des systèmes d'information”). Obtaining this “certification” is time consuming and requires the applicant to comply with procedures that can be discouraging.

4. Are there any proposals to change the law relating to electronic signatures? 

No, however it is worth noting that the Elan law (No. 2018-1021) dated 23 November 2018 was enacted with a view to increasing the dematerialisation of documents in the residential sector. For example, some of the technical appendices required as part of the execution of a residential lease are now valid in an electronic format.

5. Are there any other factors which prevent documents being entered into in electronic format?

Possibly, if the executing company has a provision in its corporate documents which restricts or prevents it from signing electronically. While not common in corporate documents this may exist and should be checked.