There are several situations where an electronic signature has the same legal effect as a handwritten signature. So, what distinguishes an electronic signature from a handwritten one, and which is better to use? Documents can be signed in two ways – electronically or traditionally. Regardless of the chosen form, the signature must have features that objectively attribute it to one person, allowing independent identification. An electronic signature is a very accessible, convenient, and secure form. A handwritten signature is always valid, but its use may not always adhere to safety standards and often requires more time, money, and effort.
What is a handwritten signature?
A traditional signature is a handwritten graphic mark placed on a document. The signer can use their full name, just the last name, or an abbreviated form (initials), as long as it allows identification, for example, using a signature sample card.
According to Article 78 of the Civil Code, a traditional signature should be legible to unmistakably identify the person signing it. However, the law does not specify how it should be constructed.
In principle, a handwritten signature is placed under the declaration of intent. Any text below the signature is not considered part of the declaration. If a document has multiple pages, signing at the end is sufficient.
Legally, it does not matter whether the traditional signature is made with a pen held in the hand, foot, or mouth. The critical aspect is that it enables the clear identification of a specific individual. If someone is unable to sign, a fingerprint accompanied by the person’s name, written by a third party, suffices.
Signing a document with a handwritten signature leaves unique biometric features specific to the signer, such as the shape of lines, character set, stroke dynamics, and distinctive characteristics developed over time. These biometric features are crucial for potential future evidence proceedings.
One type of writing must be entirely handwritten: a will. The law requires that a testator write their will by hand to ensure its authenticity after their death, providing sufficient comparative samples to eliminate any doubts about its validity.
What is an electronic signature?
Electronic signatures are regulated by the EU’s eIDAS Regulation. This is Regulation (EU) No 910/2014 of July 23, 2014, concerning electronic identification and trust services for electronic transactions in the internal market, which has been implemented into Polish law via the Act of September 5, 2016, on trust services and electronic identification (Journal of Laws 2021, item 1797).
According to these regulations, an electronic signature is defined as data in electronic form. These data are attached to or logically associated with other electronic data. When used by a specific person, they enable unequivocal and objective identification, thus serving as a signature.
Three types of electronic signatures exist in electronic document processing:
- simple signature
- advanced electronic signature
- qualified electronic signature
The most common and simplest form is the simple signature, which refers to any data that can identify the signer.
An advanced signature must be unique and enable objective and error-free identification of the signer. It is associated with the signed data to allow easy detection of any changes made to the document after signing.
A qualified electronic signature is the most advanced form of electronic signature. It is created using a qualified device based on a qualified certificate. The device, certificate, and signing process are precisely regulated under the eIDAS regulation.
Is an electronic signature equivalent to a traditional one?
According to Article 25 of the eIDAS regulation, only a qualified electronic signature has the same legal effect as a handwritten signature. It can be used to sign most contracts requiring written form to be valid.
Article 78(1) of the Civil Code lists a qualified electronic signature as an alternative to a handwritten one. It states that for an electronic legal act, a declaration of intent in electronic form, signed with an electronic signature, is sufficient. Making a declaration of intent electronically is equivalent to a written declaration.
The most commonly signed contracts using a qualified signature include:
- cooperation or employment contracts;
- non-compete agreements;
- contracts transferring copyright;
- license agreements;
- leasing agreements;
- general powers of attorney;
- real estate brokerage contracts;
- fixed-term rental agreements.
It is important to note that a qualified electronic signature cannot always be used. Certain situations require a handwritten signature, such as:
- partnership, limited partnership, limited joint-stock, and limited liability company agreements;
- real estate transfer agreements;
- perpetual usufruct right transfer agreements;
- transfer agreements for cooperative ownership rights to premises;
- inheritance division agreements involving real estate;
- wills (a unique document that must be entirely handwritten by the testator).
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Can an electronic signature be combined with a handwritten one?
The law does not prohibit combining an electronic signature with a handwritten signature within one document. This means that if one party to a contract prefers to sign electronically while the other chooses a handwritten signature, there are no legal barriers. A document signed using different signature types retains its legal validity.
What is the difference between an electronic and a handwritten signature?
The primary difference between a traditional and an electronic signature is the format. The former uses traditional writing instruments and requires the physical presence of the signer, while the latter is done remotely and electronically. A traditional signature consists of graphic data, whereas an electronic signature comprises interlinked electronic data.
A handwritten signature is inseparably tied to the document. An electronic signature applies to the entire document, while a traditional signature applies only to the text above it.
In most cases, a qualified electronic signature has the same legal effect as a traditional one. However, its use is simpler, faster, and safer.
The purpose of an electronic signature is to allow objective, indisputable, and unambiguous identification of the signer. Handwritten signatures can raise doubts, necessitating a lengthy, costly, and labor-intensive graphological procedure to verify authenticity.
A qualified electronic signature is significantly harder to forge than a handwritten one. This is due to the use of advanced IT and cryptographic security systems.
In conclusion, for most documents, an electronic signature has the same legal effect as a handwritten one. It can be made electronically and remotely, saving time and money. Additionally, electronic signatures are highly secure in terms of data transfer, forgery, and theft.
