The legal value of a scanned or digitised signature

Presentation

Under the terms of article 1163-1, paragraph 1 of the Civil Code, the purpose of a signature is to identify its author and to express his or her consent to the obligations arising from a legal act.

The so-called scanned or digitised signature is the digital image of a handwritten signature obtained after being scanned or drawn directly onto a document (such as a PDF).

Although it is commonly used, Monegasque law does not cover this type of signature per se.

The digitised handwritten signature is not the same as an electronic signature within the meaning of article 1163-3, paragraph 3 of the Civil Code, which defines it as "a signature which consists of the use of a reliable identification process and guarantees its link with the document to which it relates".

Important points

Although a digitised signature cannot be equated with an electronic signature and does not benefit from a presumption of reliability, this does not mean that it is devoid of any legal value.

If a written document containing a digitised signature is challenged, it is up to the judge to rule on the basis of the dual function of the signature (identification of its author and expression of consent) on the basis of the evidence produced in the debates to prove its reliability.

Illustrations

It is permissible to refer to French case law on digitised handwritten signatures because of the proximity of the provisions of French civil law and Monegasque civil law relating to the signature and proof of obligations in writing.

In a ruling dated 13 March 2024 (C.cass, civile, Comm, No. 22-16.487), the Cour de cassation approved the Versailles Court of Appeal (ch. 13, 8 March 2022, No. 21/01343), which had rejected the enforcement of a unilateral promise to sell company shares under private deed in the event of default in the repayment of a loan, concluded remotely and containing dubious scanned signatures, which it had been argued were presumed to be reliable.

The Court of Cassation first dismissed the argument that the freedom of commercial proof, which authorises proof other than literal proof, had been disregarded, on the grounds that "it does not appear from the judgment or from the submissions of the company H. that the latter argued that proof of the promise at issue should be assessed in the light of the rules set out in article L. 110-3 of the Commercial Code" (article 74 of the Monegasque Commercial Code).

In terms of civil law, the Court of Cassation held that the Court of Appeal had "rightly held that the process of scanning signatures, while valid, cannot be equated with that used for electronic signatures, which are presumed to be reliable by application of article 1367, paragraph 2, of the Civil Code" (article 1163-1, paragraphs 3 and 4 of the Monegasque Civil Code, worded in identical terms). It held that the lower courts had rightly deduced from the evidence submitted to the court (e-mails, contracts, minutes of a general meeting) that it was not possible to prove consent to the scanned signature, and that because it was not possible to identify with certainty the authors of the scanned signatures on the disputed promise, proof of consent to the transfer of shares in the event of default in repayment of the loan had not been provided.

On the other hand, in a decision of 14 December 2022 (CCass, Soc., 14 December 2022, no. 21-19.841), the Social Division of the Court of Cassation upheld the decision of the Court of Appeal of Angers (29 October 2020, no. 18/00521), which had given effect to the digital signature affixed to a fixed-term employment contract (CDD), rejecting the request for the CDD to be reclassified as an open-ended employment contract (CDI) for lack of a signature.

The Court of Cassation held that the Court of Appeal had rightly "stated that the affixing of a signature in the form of a digitised image could not be assimilated to an electronic signature within the meaning of Article 1367 of the Civil Code". However, since it was "undisputed that the signature in question was that of the company's manager and made it perfectly possible to identify its author, who was authorised to sign an employment contract", the Court of Appeal had "correctly deduced that the affixing of the digitised handwritten signature of the company's manager did not constitute an absence of signature".

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These cases highlight the fact that a digitised handwritten signature may or may not constitute a signature within the meaning of the Civil Code, depending on whether or not its author can be identified with certainty and whether or not proof of consent to the obligations arising from the document to which it has been affixed has been established.

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