The legal context of the evidence convention
In terms of evidence, the parties can always plan to resolve these issues by means of an agreement or contractual provisions to this effect in accordance with thearticle 1368 of the Civil Codebut only on the rights of which they have free disposal (article 1356). The convention on proof can be in the form of a clause in a contract or in an autonomous legal act, specially dedicated to this question.
It is found in particular in many general conditions appearing on e-commerce sites as well as in many contracts. These conventions constitute an agreement between the parties who intend to modify the normal rules of judicial proof, as to the burden of proof, the determination of the facts to be proven, or even and above all as to the means and methods of admissible proof procedures. in the event of a dispute or as part of an amicable settlement. This is the case in IT and digital subjects.
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They were recognized by the Court of Cassation in the 1950s and established in the field of computer signature (entry of the confidential code of the bank card) in the famous Crédicas de la Court of Cassation of November 8, 1989. Since then, the Civil Code has also integrated them by means of the law of March 13, 2000 on proof and electronic signature (art. 1316-2), article included in the order of February 10, 2016 (art. 1368).
What the decision of the Douai Court of Appeal of April 28, 2022 tells us
In this case, it was a question of a rental contract with purchase option relating to a used car for an amount of 23,889 euros with 59 rents. Following several unpaid rents, and formal notices to pay them within a week, the company terminated the contract by LRAR and gave notice to pay the total amount with interest and to return the vehicle.
The Dunkirk TGI judge ordered the return of the vehicle, which was sold at auction for 12,420 euros. The company sued the couple for payment of the outstanding balance. However, the electronic signature of the contract was missing and the court dismissed the company's requests. On appeal, the tenant was ordered to pay termination compensation. But the most important thing in this decision is the Court of Appeal's assessment of the convention on electronically signed evidence.
The value of the proof convention
The lender had submitted to the legal proceedings the rental contract with purchase option (LOA) in paper form as well as the “agreement on the proof associated with the LOA offer, general conditions of use of the subscription service on dematerialized medium”, electronically signed by tenants.
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The latter document set out the terms and conditions for concluding the contract electronically; he further recalled that the electronic signature aimed to give contracts on electronic media the same probative force as paper contracts (in accordance with article 1316-1 of the civil code then applicable) and that the signature process made it possible to authenticate the signatory, to obtain their consent and to keep the signed document in an honest manner.
In its reasoning, the Court of Appeal relies on the provisions contained in the evidence convention. Documents signed with the signature process described constitute originals and the parties undertake not to contest the admissibility, unenforceability or probative force of these electronic documents on the sole basis of their electronic nature.
This statement takes up the principle of non-discrimination found in the eIDAS Regulation of 2014. The Court concludes that “the electronic documents covered by the convention on proof constitute proof of their content, of the identity of the signatories, of the legal or factual consequences which arise from each signed electronic document.”
It is specified in the decision that the parties may establish paper copies called “conventional extracts” corresponding to the reproduction of the electronic original of the contract as it can be viewed in the dedicated customer area at the service provider. And therefore, these “extracts” may be used as means of proof, as was the case in this dispute. Finally, the Court adds that evidence of the execution of the contract was provided (delivery of the vehicle, return for auction, rent payments, transmission of copies of the tenants' identity documents).
It will be necessary to be vigilant about future developments in the eIDAS 2 Regulation, it being specified here that this revision will produce its effects in the future. The text at this stage remains relatively complex but the principles governing the conventions on evidence fall under national law and are not intended to change. Also, the solution mentioned above will remain valid: recognition of the enforceability of the convention on electronically signed proof!
Eric A. Capriolilawyer at the Court of Paris, doctor of law
Caprioli & Associés, law firm member of the JurisDéfi network of lawyers
Expert opinions are published under the full responsibility of their authors and do not commit the editorial staff in any way.
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