Agreement concluded by e-mail - is it valid?

E-mail is a necessary tool in almost every enterprise, and people running a business are slowly getting used to the fact that it is used not only to transmit information, but also to conclude various types of contracts. However, due to the unusual form of such contracts, entrepreneurs should meet several conditions for the contract concluded by e-mail to produce legal effects.

Concluding contracts - methods

In order to indicate the necessary elements of a contract concluded by e-mail, it is first necessary to analyze the form and manner of concluding contracts in general. The contract can most simply be described as a concerted declaration of intent by the parties that is intended to lead to a specific result.

Taking into account various criteria, contracts can be divided into:

• unilaterally binding (having effects only for one of the parties to the contract) and bilaterally obliging (causing obligations for both parties to the contract),

• bilateral (concluded by two parties) and multilateral (concluded by three or more parties)

• named (regulated in Polish legal regulations) and unnamed (not yet included in any legal act in force in Poland - in order for them to produce legal effects, you should analyze the contract models functioning in our legal system, compare the concluded contract to them and use the appropriate elements when creating it ).

Contracts can be entered into in various forms. It is not always directly specified in laws or regulations - in this case, the contract may be concluded in writing and orally and this does not affect its validity. Some are implicitly entered into by the parties. This means that the parties, without having previously agreed on the terms of the contract, began to meet the terms of a specific contract indicated in the legal acts.

Example 1.

While visiting Ms Y, Ms X saw a book that she very much wanted to read. She took it with her when she left, they inform Ms Y that she will return her in a week. Ms Y agreed to this.

Ladies Y and X did not conclude the contract, but they met all the requirements imposed by the law on the parties to the loan agreement.

Agreement concluded by e-mail - is it effective?

As you can see, the way the contract is concluded affects its effectiveness in many cases. Is this also the case for a contract concluded electronically?

A contract concluded by e-mail may be considered by many to be a written contract due to the fact that its content, proposed by one of the parties or agreed in advance, is sent in the body of the e-mail or in an attachment. However, this does not prove that the contract is concluded in writing - the signatures of both entities are of key importance. This is also emphasized by Art. 79 of the Civil Code:

Art. 78 § 1 In order to maintain the written form of a legal act, it is sufficient to sign the document containing the content of the declaration of will by hand. To conclude a contract, it is sufficient to exchange documents containing the content of declarations of will, each of which is signed by one of the parties, or documents, each of which includes the content of the declaration of will of one of the parties and is signed by it (...).

 

The signature must be handwritten, so one of the parties may send the content of the contract by e-mail with a request to print it out, sign it and return the document in at least two copies.

The above solution is not the only one - the parties can also use an electronic signature. This is stated in Art. 78 § 2:

Art. 78 § 2 A declaration of will submitted in electronic form with a secure electronic signature verified by means of a valid qualified certificate is equivalent to a declaration of will made in writing.

As indicated by the cited provision, the provisions of the contract with an electronic signature verified by a qualified certificate are binding on the parties. This means that almost every contract concluded by e-mail will be effective if it is signed with a secure electronic signature, unless it is a contract for which the legislator has provided for the form of a notarial deed (for example, a real estate sale contract).

However, it should be noted that § 2 of Article 78 will apply in its present form until September 8, 2016. This is the date of entry into force of the amendment to the Civil Code. It will replace Art. 781, which will read as follows:

Art. 781 § 1 To maintain the electronic form of a legal transaction, it is sufficient to submit a declaration of will in electronic form and affix it with a secure electronic signature verified by means of a valid qualified certificate. § 2 A declaration of will submitted in electronic form is equivalent to a declaration of will submitted in writing, unless the law or a legal act provides otherwise.

Therefore, the amendment to the Civil Code introduces certain restrictions when it comes to concluding contracts by e-mail - a restriction in another act as to the written form of a contract excludes the possibility of using an electronic signature. An example may be a civil law partnership agreement, loan amount exceeding PLN 500 or a construction contract.

Currently, however, the contract concluded by e-mail is valid and binds the parties, if separate regulations do not provide for it in writing, and both parties have expressed the will to be bound by it or have confirmed it by means of secure electronic signatures verified with a valid certificate.