The legislation of Ukraine provides for the possibility of concluding agreements orally and in writing. Written form is divided into: simple and notarial. In this case, the parties must agree on all the essential terms of the contract, which, in particular - are the subject, price and term of the contract.
A relative innovation in the written form of the contract is the conclusion of the contract in electronic form.
The relevance of electronic document management at the moment is due to quarantine restrictions, when meetings with contractors, in particular to sign face-to-face agreements are difficult, and pauses in work lead to loss of profits.
Electronic document management comes to the rescue, which allows you to quickly agree, sign and transfer documents to each other (contracts, acts of transfer of works / services, etc.). Such electronic documents have legal force and are considered originals, while guaranteeing their authenticity and integrity.
Today, cryptography and electronic digital signature are widely used by enterprises of various sectors of the economy and public administration to give electronic documents irrefutable legal weight. That is, the EDS has all the basic properties of a handwritten signature: certifies that the received document came from the person who signed it; guarantees the integrity and protection against distortion and corrections in the signed document; does not allow the person who signed the document to waive the obligations he undertook by signing this document.
For example, according to the laws of many countries, and in particular the Law of Ukraine "On Electronic Documents and Electronic Document Management", the original electronic document is its electronic copy with mandatory details, including the electronic signature of the author or a signature equivalent to a handwritten signature.
The safety of using EDS is guaranteed by the fact that the tools used to work with EDS are examined in the relevant government agency of the country.
With each passing day, electronic documents are displacing paper, simplifying business processes. An important element of e-commerce that underlies any activity are documents, including contracts, declarations, acts and any other document that contains information. And today such a document acquires an electronic form, which is equivalent to a written form.
The legislation of Ukraine provides for the possibility of concluding contracts in electronic form. Thus, according to paragraph 5 of part 1 of Article 3 of the Law of Ukraine "On e-commerce" electronic contract is an agreement of two or more parties aimed at establishing, changing or terminating civil rights and obligations and executed in electronic form.
Article 652 of the Civil Code of Ukraine gives the same definition: "a contract is an agreement of two or more parties aimed at establishing, changing or terminating civil rights and obligations."
Does such a contract really have the same legal force as the usual paper version? The answer is yes!
The second paragraph of Part 2 of Article 639 of the Civil Code of Ukraine stipulates that an agreement concluded with the help of information and telecommunication systems with the consent of both parties is considered concluded in writing.
According to Part 1 of Article 181 of the Commercial Code of Ukraine, a commercial contract usually exists in the form of a single document signed by the parties. It is allowed to conclude economic agreements in a simplified form by exchanging letters, faxes, telegrams, telephonograms and other means of electronic communication, as well as by confirming acceptance of the order, unless the law establishes special rules for the form and procedure for concluding this type of agreement.
As we see, any type of contract that we are used to concluding on the basis of the Civil or Commercial Codes of Ukraine can have an electronic form. An agreement concluded in electronic form is one that is concluded in writing (Articles 205, 207 of the Civil Code of Ukraine).
However, as mentioned above, it is important that the electronic contract includes all the essential conditions for the relevant type of contract, otherwise it may be declared unconcluded or invalid, due to non-compliance with the written form by direct instruction of the law.
In addition, it is important to understand - in which case you need to create an electronic contract in the form of a separate electronic document, and when it is enough to express their will through electronic communication.
Yes, in accordance with Art. 6 of the Law "On Foreign Economic Activity", which states, inter alia, that in certain cases the agreement (contract) may be concluded by accepting a public proposal for an agreement (offer) or by exchanging e-mails, or otherwise, in particular by invoicing , including in electronic form, for services rendered.
The purpose of signing the contract is the need to identify the signatory, confirm the consent of the signatory to the terms of the contract, as well as confirm the integrity of the data in electronic form.
If we have an electronic contract in the form of a separate document, then it must be signed with an electronic signature.
According to Part 1 of Article 12 of the Law of Ukraine "On E-Commerce" the moment of signing an electronic legal agreement is the use of:
1) electronic signature or electronic digital signature in accordance with the Law of Ukraine "On Electronic Digital Signature", provided that the electronic digital signature is used by all parties to the electronic legal agreement;
2) electronic signature with a unique identifier defined by this Law;
3) analogue of a handwritten signature
So we recommend using the latest technology to simplify paperwork and save your precious time. However, if you are prone to traditional means of exchanging documents and meeting with your contractors, there is nothing stopping you from being a conservative.
For further clarification on the use of electronic documents, please contact our lawyers.
Director of MBLS Law Firm, lawyer.
Civil Code, Commercial Code, Law "On electronic trust services"; Law “On electronic documents and electronic document flow”, Law “On e-commerce”, Law “On foreign economic activity”, materials of the web resource chp.com.ua.