The Third Chamber of the Brazilian Superior Court of Justice (STJ), at the session held on 15th May 2018 in respect of Special Appeal No. 1.495.920/DF, determined that a certification authority can grant authenticity, integrity and legal validity to electronic agreements, which permit the direct enforceability of such private instruments.
As provided for in Article 784 of Brazilian Code of Civil Procedure, private instruments executed by the parties and two witnesses form part of an exhaustive list of directly enforceable instruments, as long as the obligations arising therefrom are certain, liquid and enforceable.
The electronic environment is gradually replacing paper as the support for information and origin of credit instruments, yet one of the obstacles for considering electronic agreements as directly enforceable instruments was the lack of the signatures of two witnesses, which is a formal requirement for paper agreements to be recognized as directly enforceable instruments.
In this regard, it has been discussed that for agreements entered into in digital format, the competent authority certifying the parties’ signatures would act in the capacity of such witnesses, thereby granting authenticity and veracity to the document.
Given the above-mentioned decision, nowadays the most varied electronic agreements have been executed and this is a relevant economic and social reality that must be considered, since neither the Brazilian Civil Code nor the Brazilian Code of Civil Procedure are fully up-to-date with current methods to execute contracts.
Moreover, although the STJ decision is not binding, in other words – it is not a binding precedent, it indicates a relevant change in the formerly stated position, which used to require the issuing of ordinary proceedings to have the agreement’s enforceability recognized.
In short, if minimal authenticity and security requirements are satisfied, the existence and enforceability of the agreement, previously only permitted by the signatures of two witnesses, may be exceptionally recognized by other ways, namely the absence of witnesses by itself should not rule out the enforceability of the electronic agreements, which may now be considered directly enforceable instruments.