Legal Forms and new Technologies
LEGAL FORMS AND NEW TECHNOLOGIES
The subject of legal formalities is one of the most important in every legal system, because one of the tools of legal security is the publication of the Laws and of the Acts. The reason is simple enough: the Law has to be published because it has to be known by all the citizens. Nevertheless, it is a very wide topic, possibly too wide to be totally treated at the moment, because it involves many fields, from the publication of Acts to the form of wills, or the form of contracts.
That is the reason why I have taken the decision, which I think is realistic, even though it may be surprising, to reduce the topic of this paper to deal only with the formalities of contracts. The reason for this decision is that contracts are possibly the most important instrument or means in order to make the interchange of goods and services easy. The same idea of contract is also a wide one, because it extends from the simple promise to the most complicated conveyances or purchases; from leases to agreements about the financial arrangements of marriage. And the effects are also important and powerful, because valid agreements and contracts are enforceable.
I believe that this seems to be a good reason to dedicate the following minutes to thinking about the influence of the so-called new technologies on the form and the validity of contracts.
Formalities of contracts is an idea that has traditionally been linked to two others: those of writing and of the document. The first one, writing, consists of a set of visible marks or structures called characters, related to a linguistic system. This relation between writing and language has been appreciated for a very long time. Good evidence of this is that a human group as unusual as the Australian aborigines call books “papers that speak”.
From this point of view, RUSSELL could say that language is a system of symbols and writing is another system to symbolize those symbols. That is the reason why, at present, writing appears to be a means of expression of a language, a means of communication; perhaps the most important, but not the only one. Grimaces and drawings are also visible signs which also reveal thought; but they do not consist of writing, because they are not linked to any language.
Writing, therefore, is a code; it codifies language and moves it to a system of graphics signs which represent sounds; it also represents the letters, of course, in the case of alphabetic writing. But we cannot forget that language is an independent communication code and writing is also another code, but it depends on language. This is what has been happening from the first and earlier periods in which graphic symbols represented sounds. But this link became closer when alphabets appeared. This fact was a great step in the right direction and took place when representative signs stopped representing something else and began to represent themselves. As I have said before, this moment can be considered the starting point of alphabetical writing. And it also means the highest point of the symbolic process of codification and abstraction of graphic expression.
Throughout time, writing has always needed some material support to be maintained and to reveal itself. This is the reason of the well known Latin saying: verba volant, scripsa manent. But also over time, it has always been possible to distinguish and separate, even physically, the writing and the material support, the back-up, in modern terms. In fact, the legal system of specification is good evidence of this. It starts from the distinction between both topics, writing and material support; and it considers that the principal thing, which represents and reveals the intellectual work of the author, is the latter, not the former.
There are many kinds of materials which are able to record, keep and reveal the messages of writing. Article 377 of Spanish civil Code shows to perfection this plurality: it includes wood, metal, stone, paper and parchment. But the list does not include all the possibilities and many others can be added: for instance, the walls and roofs of caves and buildings, clay or wax tablets, the cloth, leather, the finest kind or parchment named vellum, etc.
Handwriting was another permanent characteristic until a short time ago. This did not mean that the intellectual author of a written message was also the material writer of it. It was not unusual that another person wrote down the message on the support, perhaps because impossibility of the author to do it by himself. In all that cases authentication of the writing was needed and the way to obtain it was, at first, the use of seals, and afterwards the written signature. Even at present, the so-called deeds under seal under British common Law recall and show the special force of the seal to link the two parties of an agreement. Hand-written signatures, therefore, are the basis in obtaining the identity of the author of a writing text; and this has the dual purpose of authenticating the author and ensuring that he has written his signature freely, without any kind of duress or undue influence.
Over time, hand-written signature has been the principal, most important and sometimes the sole proof of the authenticity and the freedom of a piece of writing, both in the Courts and out of them. Indeed, there was not another means to substitute it. This is probably the reason why the BGB have settled in its paragraph 126 that if there is not any signature in the document it is void and cannot produce any effects at all. And this occurs in the Spanish legal system. The only requirement of a private document under Spanish Law is the signature of all the parties. Spanish Courts have also followed this way. There are sentences which have denied validity to photocopies or faxes because they lack authenticity. In Spanish civil procedure recognizing of hand-written signature was always a requirement to obtain the validity of private documents, that is to say, of those which are signed in the absence of a public notary (eg, STS of November 12th, 1998).
Finally, I should like to comment on another important topic. As I have said, writing implies a codification; but only one. One can see in this sole codification a perfect identity between the message which is maintained or stored by the material support and the message which is revealed and shown to the reader. The introduction of new technologies has a very great influence all over these topics. I will try to explain it in the next few more minutes.
The new-born world of computers has greatly modified this. This new universe also needs a new communication code and has had to create its own language; a language which has only two letters. That is the reason it is called binary language. In fact, this is not a true language, in the usual sense of the word, but a new way of codification of language; that is to say, a system, the so-called binary system. Its main purpose is storing the messages and texts written in other different languages, whatever they may be, Italian, English, Spanish, etc. But there is a great difference between the classical way of storing and showing a written text and that of a computer. This difference is that identity between the stored message and the revealed text does not exist, has disappeared. In fact, the text shown on the screen of the computer does not exist at all. It has only virtual entity, not material. What really do exist are thousands of light pixels in the screen, which compose letters and show the stored message in their original language, not in this other in which it has been stored. And pixels are only something electric, nonmaterial; perhaps nice coloured, but nonmaterial.
Can we call to this new way of presentation writing? Can we call to these kind of messages written texts? I am not sure about the answer. In fact, we can see letters that do not exist in the real world. And we cannot see the magnetic field on the hard disk. On the disk, tracks are recorded in the only language it can recognize, that is to say, in the binary system. So, one has many doubts to consider those signs as a written text; many, many doubts.
And this is what has happened in the recent Spanish legislation. The Spanish Services of Information Society and E-commerce Act is good evidence of this. Article 22.3 of this Act says that if a written form is required for any kind of information or contract, it is assumed that this requirement is “satisfied” –exact translation– if the texts are contained in an electronic support. This means that the Act does not consider that this way to show a message is a written text; on the contrary, it thinks that are two different kinds of presentation, but both of them are valid and have the same legal effects.
But, at the moment, a new problem arises. How can we ensure the authenticity of the text? How can we know author’s identity? Computer world does not allow hand-written signature. So that, a new kind of signature has been invented: I mean, of course, the so-called electronic signature. The invention seems to be satisfactory. Specialists say that e-signature is far more secure than hand-made one, because it cannot be forged. But happiness is short-lived. Many important questions soon arise. Is e-signature a true signature? If not, what kind of thing is it?
First of all, we have to distinguish between the simple e-signature and the digital signature, far more complicated. Only the latter is considered more secure that hand-written signature. But an explanation about it requires we have to enter the fascinating world of cryptography. It would take too much time to demonstrate here what a digital signature consists of. It has to use two different kinds of keys, the public key and the secret key. The secret one can only be known by its holder, that is to say, the sender of a message; the best thing would be that it would be unknown even by the holder an this is not such a distant possibility for science at present. On the other hand, the public one can be known by any potential addressee. Both of them are linked by complicated mathematical methods. The sender of a message has to enclose both keys in it. The addressee can only use the public one to open the other and to access the message in this way. As you can see, this system can ensure both things, the authenticity of a message and the identity of the author of it.
But this simple description gives good evidence about the true nature of digital signature: it is really a key. A very special kind of key; but a key. It cannot be forged, because of this special nature, but it can be reproduced and, of course, it can also be stolen. It can, therefore, be improperly used, in an illegal way; but, even in that case, it will be the true and real key. Indeed, it will be much more difficult to know when the true digital signature has been used in the wrong way by the wrong person.
The legal effects of this conclusion are important. Indeed, it leads to a displacement from one field of the law of contracts to another. In the more common and classical cases, a forged signature or authentic hand-written signature made under duress, could be discovered in a trial by a good expert witness. The legal effect is simple: the contract can be voided, because of duress. In the case of improper use of a digital signature, it is far more difficult to give evidence of this. But when it happens and it can be proved, there is not any contract at all, it is radically void. Under Spanish law, the legal basis and the time to contest the contract are very different in one case and in the other. The first one must be based on articles 1261 and 1265 of the Spanish civil code, that deal about consent obtained under duress; and the time to contest the validity of this contracts is 4 years (art. 1300 of civil code). In the second case, the legal basis for contesting will be article 1259, which prohibits to contract on behalf of another person without a power of attorney; and there is no time to contest this kind of ghost contract.
As you can see, the different nature of each kind of signatures also produces different legal effects. From the legal point of view it means that different problems need also different ways to solve them.
