The procedure for signing electronic contracts

According to clause 5 of part 1 of Article 3 of the Law of Ukraine “On e-commerce”, an electronic agreement is an agreement between two or more parties aimed at establishing, changing or terminating civil rights and obligations and is executed in electronic form.

Article 652 of the Civil Code of Ukraine gives the same definition: “the agreement is an agreement between two or more parties aimed at establishing, changing or terminating civil rights and obligations.”

The second paragraph of Article 639 of the Civil Code of Ukraine provides that an agreement concluded with the help of information and telecommunication systems with the consent of both parties shall be deemed concluded in writing.

In accordance with Part 1 of Article 181 of the Commercial Code of Ukraine, a commercial contract, as a rule, exists in the form of a single document signed by the parties. Commercial agreements can be concluded in simplified form by exchanging letters, faxograms, telegrams, telegrams and other means of electronic communication, as well as by confirmation of acceptance for execution of the order, unless the law establishes special rules for the form and order of conclusion of this type of contracts.

As you can see, any type of contract that we are accustomed to concluding on the basis of the Civil or Commercial Codes of Ukraine may have an electronic form. The contract concluded in electronic form is written in the form of written (Articles 205, 207 of the Civil Code of Ukraine).

However, it is important that the electronic contract includes all essential conditions for the type of agreement in question, otherwise it may be recognized as unpublished or invalid, due to non-compliance with the written form by virtue of the direct indication of the law.

By virtue of paragraph 1 of Article 638 of the Civil Code of Ukraine, a contract is deemed to have been concluded if the parties in a proper form have reached agreement on all essential terms of the contract.

However, it is important to understand – in what particular case it is necessary to create an electronic contract in the form of a separate electronic document, and when enough to express their will with the help of electronic communication.

The purpose of signing the contract is the need to identify the signatory, confirmation of the consent of the signatory to the terms of the contract, as well as confirmation of the integrity of the data in electronic form.

If we have an electronic form of the contract, then you must sign it electronically.

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) an electronic signature or an electronic digital signature in accordance with the Law of Ukraine “On Electronic Digital Signature”, subject to the use of electronic digital signature funds by all parties to the electronic legal agreement;

2) electronic signature with a one-time identifier specified by this Law;

3) an analogue of a personal signature (facsimile reproduction of the signature by means of mechanical or other copying, other analogue of his own signature) with the written consent of the parties, which should contain samples of corresponding analogues of personal signature.

Not every electronic legal agreement requires the creation of a separate electronic contract as a separate electronic document. Electronic contract can be concluded in a simplified form, but can be classically – in the form of a separate document.

An agreement in a simplified form by way of exchange, for example, by electronic mail and other means of electronic communications, or an agreement entered into by joining it can be signed using:

1 Electronic signature

An electronic signature is data in electronic form that is attached or logically associated with other electronic data and is intended to identify the signer of this data.

For example, registering on the company’s website allows you to identify the client, and clicking on the virtual button “agree”, “confirm”, is essentially an electronic signature.

Thus, it is possible to draw a conclusion and sign an electronic agreement on the supply of electric energy by the owner of the living space. The consumer on the company’s website fills in the required fields of the electronic form, downloads the documents scanned therein, places a check in the field of confirmation of his consent to the conclusion of the accession agreement and sends the energy supply company.

An electronic signature is a one-time id
An electronic signature of a one-time identifier is data in electronic form in the form of an alphanumeric sequence that is attached to other electronic data by the person who accepted the offer (offer) to conclude an electronic contract and sent to the other party to this contract.

This is a combination of numbers and letters, or only digits, or only letters that you receive by e-mail in the form of a password, sometimes in a pair of “login password”, or a SMS-code sent to the phone, or in another way.

When registering an order made under the login and password, an electronic document is created, in which the person who created the order is indicated with the information system (website of the online store).

3) an analogue of a personal signature (facsimile reproduction of the signature by means of mechanical or other copying, other analogue of his own signature) with the written consent of the parties, which should contain samples of corresponding analogues of personal signature.

Not every electronic legal agreement requires the creation of a separate electronic contract as a separate electronic document. Electronic contract can be concluded in a simplified form, but can be classically – in the form of a separate document.

An agreement in a simplified form by way of exchange, for example, by electronic mail and other means of electronic communications, or an agreement entered into by joining it can be signed using:

1 Electronic signature

An electronic signature is data in electronic form that is attached or logically associated with other electronic data and is intended to identify the signer of this data.

For example, registering on the company’s website allows you to identify the client, and clicking on the virtual button “agree”, “confirm”, is essentially an electronic signature.

Thus, it is possible to draw a conclusion and sign an electronic agreement on the supply of electric energy by the owner of the living space. The consumer on the company’s website fills in the required fields of the electronic form, downloads the documents scanned therein, places a check in the field of confirmation of his consent to the conclusion of the accession agreement and sends the energy supply company.

An electronic signature is a one-time id
An electronic signature of a one-time identifier is data in electronic form in the form of an alphanumeric sequence that is attached to other electronic data by the person who accepted the offer (offer) to conclude an electronic contract and sent to the other party to this contract.

This is a combination of numbers and letters, or only digits, or only letters that you receive by e-mail in the form of a password, sometimes in a pair of “login password”, or a SMS-code sent to the phone, or in another way.

When registering an order made under the login and password, an electronic document is created, in which the person who created the order is indicated with the information system (website of the online store).

3 An analogue of a handwritten signature (facsimile reproduction of the signature by means of mechanical or other copying, other analogue of a personal signature).

In this case, the use of the facsimile signature may be by written consent of the parties, and the presence of samples of the corresponding analogues of the handwritten signatures in the parties.

It is important to remember that the problem of such signatures is that it is not always possible to identify the identity of the signer and to ensure the integrity of the document.

However, the specifics of the work of organizations with individuals is that one of the parties, as a rule, a consumer, is not able to use an electronic digital signature. Therefore, such types of electronic signature have the right to be.

In this case, the risks associated with the use of a less reliable type of electronic signature are less significant than the risks associated with the loss of potential buyers and consumers of services that do not use an electronic digital signature.

An electronic contract in the form of a separate electronic document must be signed by imposing an electronic digital signature.

An electronic digital signature (EDS) is an electronic signature obtained as a result of a cryptographic transformation of the electronic data set that is added to or combines with this set and allows it to confirm its integrity and identify the subscriber. An electronic digital signature is superimposed using a private key and verified using a public key.

The signatory is a person who legally owns a private key and imposes an electronic digital signature on his own behalf or on behalf of the person she represents when creating an electronic document.

The Law of Ukraine “On Electronic Digital Signature” establishes that it is electronic digital signature with legal status equivalent to a personal signature (seal) if:

– Electronic digital signature is confirmed using the enhanced key certificate with the help of reliable digital signatures;

– during checking the enhanced key certificate used at the time of the imposition of an electronic digital signature was used;

– The personal key of the signer corresponds to the public key specified in the certificate.

Each copy of an electronic document bearing the signature of it, specified in Article 12 of the Law of Ukraine “On E-Commerce”, is the original of such a document.

It’s important to remember that an electronic signature can not be considered invalid only because it has an electronic form or is not based on an enhanced certificate of the key.

Yes, electronic documents in state reporting bodies, documents for participation in state purchases are provided with an electronic digital signature.

Yes, electronic documents in state reporting bodies, documents for participation in state purchases are provided with an electronic digital signature.

Receiving an EDS can be an individual, a legal entity, an individual – an entrepreneur in accredited key certification centers. The departments of the State fiscal service of Ukraine provide EDS on the basis of the established package of the document free of charge at the time of the request.

If the parties decide to sign a contract not an electronic signature, or an electronic signature or a one-time ID, it is necessary to include in the contract itself the clause on the use of such a signature, namely: to determine the type of electronic signature, the procedure of its imposition and other important conditions related to the specifics of the conclusion of the electronic the contract.

Posted by Anatoly Perepelchenko

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