A simple e-mail message, unless accompanied by a digitally signed statement, does not have the force of a private contract under Article 2702 of the Civil Code. Generic expressions of consent or acceptance of a proposal do not constitute a writing within the meaning of Articles 1350 and 1351 Civil Code.
In Judgment No. 22012 of 07/24/2023, the Second Civil Section of the Court of Cassation intervened to shed light on an interesting issue, namely, the value of a mere e-mail message lacking a digitally signed statement by the sender; for the Court, only in the presence of an advanced, qualified or digital electronic signature can a legal transaction be said to be concluded with written form “ad substantiam” (see judgment published in Law Guide, 2023, 46).
The case originates from a dispute that arose over the recognition of commissions charged for a real estate agency’s mediation activities following a proposal to purchase real estate accepted by the promising sellers by sending a simple e-mail message; the actual acceptance of the proposal by the sellers was disputed in the dispute.
If, at the end of the first instance judgment, the trial court had decided the dispute without going into the merits of the effectiveness of the e-mail message, the Court of Appeals, on the other hand, had deepened the issue by affirming the principle that an e-mail message is not comparable to a private writing either from an evidentiary or, even less, from a formal point of view. The Court of Cassation finally shed light on the point by clarifying that a simple e-mail, insofar as it lacks an electronic signature, does not have the effectiveness of a private
writing provided for in Article 2702 of the Civil Code (also conforming Cass. Civ Sec. VI, 14.05.2018, no. 11606, in Just. Civ. Mass. 2018).
The topic deserves a brief elaboration.
First of all, the reference legislation on electronic signatures is, at the European level, Regulation (EU) No. 910/2014 (“eIDAS Reg.”) and, at the national level, Legislative Decree No. 82/2005 – Digital Administration Code (“CAD”).
Our legal system, implementing the provisions of the eIDAS Reg. eIDAS, recognizes three types of electronic signatures (in ascending order of trustworthiness):
1. Simple electronic signature: a set of data in electronic form that allows a particular act to be traced back to a natural person (e.g., the signature on a scanned original) (so-called “FES”).
2. Advanced Electronic Signature: a set of data in electronic form with the requirements of Art. 26 of the eIDAS Reg. and the technical characteristics of Art. 56 of the Prime Minister’s Decree of February 22, 2013, which enable the identification of the signer of the document and ensure a unique connection to the signer, through means over which the signer can retain exclusive control (so-called “FEA”); an example of FEA is the graphometric signature used on tablets by banks and insurance companies.
3. Qualified electronic signature (or digital signature): an electronic signature created by a qualified electronic signature creation device and based on a qualified certificate for electronic signatures (so-called “FEQ”). Article 25 of the eIDAS Reg. specifies that “… a qualified electronic signature based on a qualified certificate issued in one Member State shall be recognized as a qualified electronic signature in all other Member States …”.
Article 24, para. 4b, CAD, contemplates the possibility of an electronic signature being based on a qualified certificate issued by a certifier established in a state outside the European Union, when (a) the certifier meets the requirements set forth in Reg. eIDAS and is qualified in a Member State, or (b) the qualified certificate is granted by a certifier established in the European Union that meets the requirements of the same Regulation, or (c) the qualified certificate, or the certifier, is recognized under a bilateral or multilateral agreement between the European Union and third countries or international organizations.
Under 49 of the eIDAS Reg. eIDAS, it is up to national law to define the legal effects of different types of electronic signatures and, consequently, which types of electronic signatures are required to deem a document validly signed under Italian law. Article 20 CAD stipulates that a “… computer document satisfies the requirement of written form and has the effectiveness provided for in Article 2702 of the Civil Code when a digital signature, other type of qualified electronic signature or advanced electronic signature is affixed to it or, in any case, it is formed, after computer
identification of its author, through a process having the requirements established by AgID pursuant to Art. 71 [adoption of guidelines by AgID, ed.] in such a manner as to ensure the security, integrity and unmodifiability of the document and, in a manifest and unequivocal manner, its traceability back to the author …” (art. 20 cited above).
For acts not included among those in items 1 through 12 of Article 1350 of the Civil Code where written form is mandatory (e.g., contracts involving real estate and related contracts), the signature is considered valid whether it is made through FEQ or FEA.
The difference between the two types of signatures lies in their legal effects: both FEA and FEQ have the effectiveness provided for in Article 2702 of the Civil Code, however, the advanced electronic signature (FEA) can only be used in internal relationships between the parties signing the document (see Article 60 of the Prime Minister’s Decree of February 22, 2013), while the qualified electronic signature (FEQ) can also be enforced against third parties. Returning to the decision under comment, the Court of Cassation deserves credit for having decided by adhering to the letter of the Code of Digital Administration (Legislative Decree 82/2005) already in force at the time of the facts of the case – dating back to 2008 – focusing on the value of the computer document signed “… with a qualified electronic signature or digital signature …” (Art. 20 CAD in the previous wording); e-mail alone is not enough.
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