eSignature Legality in Brazil

E-Signature Legality Summary

The Brazilian Civil Code regulates the formation and validity of contracts in general. Article 104 of the Brazilian Civil Code sets out the validity of a legal contracting act as requiring:

1. competent parties;
2. a lawful object, determined or determinable; and
3. a form prescribed or not prohibited by law.

MP 2.200-2/2001 regulates simple electronic signatures and digital signatures (defined below) and their use in connection with the formation and validity of electronic documents. MP 2.200-2/2001 also created the Brazilian Public Keys Infrastructure (“ICP-Brasil”), an organization formed by certifying authorities with the specific purpose of guaranteeing the legal integrity and validity of electronic documents and the execution of secure electronic transactions. ICP-Brasil is responsible for issuing digital certificates that are used with digital signatures.

Types of Electronic Signature

With respect to simple electronic signatures, MP 2.200-2/2001 does not provide for a legal definition of an electronic signature. Rather, any manifestation of intent is sufficient.

For heighted electronic signatures, called digital signatures, ICP-Brasil rules require that the parties involved in an electronic contract must be identified by means of:

1. an electronic signature certified by a certifying agency or
2. a login and a password granted by a certifying agency.

To obtain an individual digital certification with a certifying agency to enter into agreements, under the ICP-Brasil framework, this individual is required to attend an in-person meeting to submit their personal documentation, such as proof of ID and, for those representing a company, proof of relationship with the company must also be provided (employment contract or corporate documents). The electronic system can also provide a login and a password to the user through secure methods, which exempts the need to use the individual certification.

Documents That May be Signed Electronically

Generally, agreements in Brazil can be provided and signed electronically so long as the parties agree to use an electronic form (it can be express or implied) and the law does not otherwise preclude the use of electronic signatures and records. The following categories typically do not (i) have specific formal statutory requirements under Brazilian law requiring that a signature be used or (ii) require use of an enhanced electronic (i.e., digital) signature (provided that such transactions are not subject to notarial registrations or government filings):

• HR
• Procurement
• NDAs
• Software Licensing
• Healthcare
• Banking
• Lending
• Chattel Paper
• Insurance
• Education
• Life Sciences
• Technology sector; and
• Consumer Transactions.

Further Guidance

The following either have specified requirements for using electronic or digital signatures or the use of electronic or digital signatures is not prohibited, but caution should be exercised before using electronic or digital signatures:

• Government Filings and Documents to be Recorded; and
• Corporate Resolutions.

MP 2.200-2/2001 acknowledges the validity of electronic documents that use simple electronic signatures, provided that such documents are recognized and declared valid by the parties involved in the transaction. If an agreement is executed using a simple electronic signature and its authenticity is challenged, the parties may be required to prove the terms of the agreement and, in case of a dispute, present supporting evidence in court. When the authenticity of a document is challenged, the burden of proof lies with the party who drew up the document. Should a dispute arise, electronic signatures with heightened identity or security information associated with them (e.g., an audit trail with identity documentation of the signer and fraud evident protections incorporated into the electronic document) may offer enhanced evidentiary weight.

For transactions involving a digital signature, a presumption of validity is placed on the signed document. Specifically, documents produced using the digital certification of ICP-Brasil and electronically signed using a digital signature pursuant to MP 2.200-2/2001 are deemed to be presumed true and valid. If the validity of such a digital signature is challenged, the challenging party is required to provide evidence of the digital signature’s invalidity.

Case Law

The following case is an example of where a Brazilian court addressed the use of electronic signatures:

• Special Appeal No. 1.495.920.