Signature in electronic contracts: practice of the Supreme Court of Ukraine

Civil law
Semenenko Yevhenii
Law Services - Signature in electronic contracts: practice of the Supreme Court of Ukraine

    Not every electronic legal agreement requires the creation of a separate electronic agreement in the form of a separate electronic document. The relevant provision is contained in the Resolution of the CCU of January 12, 2021 in case No. 524/5556/19.

Circumstances of the case:

    The plaintiff asked the court to invalidate the clause of the financial loan agreement and declare this agreement as a whole invalid.

In particular, he noted that the agreement on granting a financial loan was not signed by him, the parties did not agree on all its essential conditions. The disputed agreement contains unfair conditions contrary to the principle of integrity, which is a consequence of a significant imbalance of contractual rights and obligations aimed at worsening the situation of the consumer, which is the basis for declaring such an agreement invalid.

     There is also no evidence that the defendant transferred credit funds to him, so the contract cannot be considered concluded.

By the decision of the local court, the claim was left without satisfaction. The court decision of the court of first instance is motivated by the fact that the agreement on the provision of a financial loan concluded between the parties in electronic form contains an electronic signature of the plaintiff and a representative of “European Credit Group” LLC, therefore it has the force of the contract concluded in writing and signed by the parties that complies with the provisions of the Law “On E-Commerce”.  

     However, the Supreme Court of Ukraine noted that any type of contract concluded on the basis of civil or commercial codes may have an electronic form.
The contract concluded in electronic form is concluded in writing (Articles 205, 207 of the Cc).

By virtue of Part 1 of Art. 638 of the Cc agreement is considered concluded if the parties in proper form have reached agreement on all essential terms of the contract.

    The Court, having established the actual circumstances in the case on which the correct resolution of the dispute depends, having correctly applied the norms of material law, came to a reasonable conclusion that the disputed agreement on the provision of a financial loan was signed by the claimant using a one-time password-identifier, that is, the proper and admissible evidence confirmed the conclusion between the parties of the disputed agreement. Without receiving a letter to the e-mail address and/or sms message, without logging into the company’s website using the login of the personal account and password of the personal account, the loan agreement between the claimant and the defendant would not be concluded. The parties have reached agreement on all essential terms of the agreement, which refutes the arguments of the cassation complaint in this part. There is no evidence of the opposite material of the case, the plaintiff did not provide such that, due to the provisions of Articles 12, 81 of the CPC, is its procedural duty.

Consequently, it is important that the electronic contract includes all essential conditions for the relevant type of contract, otherwise it may be declared unen concluded or invalid due to the failure to comply with the written form due to the direct indication of the law.