In the modern world, it is necessary not only to keep up with the passage of time, but also to make life easier with modernized, convenient technologies. The main problem of any enterprise is an increase in the volume of document circulation and the number of documents that are submitted for signature to the manager. Signing this endless mountain of paper, the manager is deprived of the opportunity to carefully familiarize himself with the content of each document. In order to avoid such a waste of time, in some cases, instead of the manager’s handwritten signature, a facsimile is used. But is the use of facsimile always legal?
About signing the contract
The use of a facsimile reproduction of a signature in the execution of transactions is permitted in cases established by law or by written consent of the parties, which must contain samples of the corresponding analogue of their handwritten signatures (Part 3 of Article 207 of the Civil Code).
Similar provisions are contained in the Law of Ukraine “On Electronic Commerce”, which states that an electronic transaction can be signed using an analogue of a handwritten signature (facsimile reproduction of a signature using mechanical or other copying means) with the written consent of the parties, which must contain samples of the relevant analogues of handwritten signatures if the possibility of such signing is provided for by an act of civil legislation or by agreement of the parties (Article 12 of the Law of Ukraine “On Electronic Commerce”).
Thus, the legislation provides for the possibility of using a facsimile reproduction of a signature only if the parties to the contract have agreed that such a signature is admissible, such an agreement contains samples of a corresponding analogue of their handwritten signatures, or if the right to use such a signature is expressly established by law.
Whether the contract will be considered to be concluded in writing if it is not signed properly
We draw attention to the Plenum of the Higher Economic Court of Ukraine, which in Resolution No. 11 dated 05/29/2013 “On some issues of invalidity of transactions (business contracts)” emphasized the fact that non-compliance with the form of the transaction, which is required by law, entails the invalidity of the transaction only if it is expressly provided by law. In such cases, the deed is considered null and void. For understanding, contracts that are not concluded in writing are null and void: transactions to ensure the fulfillment of an obligation (penalty, surety, guarantee, pledge, retention, deposit), insurance contract, credit contract, contract on disposal (transfer of rights in whole or in part ) property rights of intellectual property (from copyright to the right to TM or patents), etc.
Thus, non-compliance with the written form of the contract does not entail automatic recognition of its invalidity. Because, for example, not all contracts have a mandatory written form. An agreement, for which the law does not establish a mandatory written form, is considered concluded if the parties’ manifestation of will proves their will (intentions) before the onset of the relevant legal consequences, which can be confirmed by written evidence (electronic and paper letters) and explanations of the parties (Part 2 of Art. 205 of the Civil Code of Ukraine). And if the contract, for which the law establishes its invalidity in the event of non-compliance with the requirement for a written form, was concluded orally and one of the parties performed an act, and the other party confirmed its performance, in particular by accepting performance, such an act may be recognized by the court as valid in the event of a dispute (Part 2 of Article 218 of the Civil Code of Ukraine). For example, the parties did not conclude a written contract, but the contractor performed the work, issued an invoice to the customer, and the customer paid for the work, then such a contract can be recognized as valid despite the fact that it was not concluded in writing. The main thing is to understand what events preceded the performance for reporting – payment, completed and confirmed work (services).
How to sign internal documents in the company
The National Standard of Ukraine “State Unified System of Documentation” is currently in force in Ukraine. Unified system of organizational and administrative documentation. Requirements for processing documents. DSTU 163-2003″. This standard, among other things, establishes requirements for the details of documents and applies to organizational and administrative documents, resolutions, orders, orders, regulations, decisions, protocols, acts, letters, etc., created as a result of the activities of the state authorities of Ukraine, as well as enterprises, institutions, organizations of all forms of ownership. The specified standard does not provide for the possibility of using an analogue of a handwritten signature during the preparation and approval of organizational and administrative documentation. Moreover, the standard stipulates that the stamp of approval, resolution, visa, note on the certification of a copy of a document, note on the execution of a document, etc. must contain a signature consisting of the title of the person signing the document, personal signature, initial(s) and surname.
It should be noted that the provisions of the Civil Code of Ukraine have a higher force than the provisions of the National Standard of Ukraine. And therefore, taking into account the third part of Article 207 of the Civil Code of Ukraine (regarding the possibility of using a facsimile reproduction of a signature), the company can develop an internal regulation on the procedure for keeping records at the enterprise. This procedure may include cases where the use of facsimiles is permissible and legal within the scope of your company’s activities. However, it should always be remembered that those documents, the acceptance, signing or issuance of which may not be beneficial to certain third parties (and therefore may be contested in court), should be drawn up in such a way that there are no grounds for recognizing such documents as invalid.
Briefly about court practice
In 2018, the Supreme Court considered case No. 910/4050/17 on debt collection under a service contract. In this case, the court considered a case where most of the documents between the parties were signed by facsimile, which, as one of the parties to the dispute notes, is a well-established practice between the parties to a contract for the provision of services. The Supreme Court drew attention to the provisions of the third part of Article 207 of the Civil Code of Ukraine and noted that the use of facsimile signatures for the execution of transactions and other business operations requires the written consent of the parties, which can be expressed, in particular, in a written agreement concluded between the parties, in which the use of facsimiles and samples of real and facsimile signatures of officials or representatives of parties to a contract or other document is agreed. It is in this way that the legal force of a facsimile, as a personal signature, is established, and documents certified by it will be considered concluded in accordance with the requirements of the law.
The existence of an established practice between the parties to the contract regarding the use of a facsimile, without compliance with the requirements of the third part of Article 207 of the Civil Code of Ukraine, does not affect the decision on the legality of its use in cases where the other party denies the legal validity of the document signed in this way.
The Supreme Court remanded the case for a new trial and ordered that at the new trial the court should properly investigate whether the parties have agreed, in accordance with the requirements of the third part of Article 207 of the Civil Code of Ukraine (by concluding an agreement), the use of facsimile reproduction of the signature.
We conclude that Ukrainian legislation provides the opportunity to use a facsimile reproduction of a signature, but only if the right to use it is provided for by law, contract, internal regulations, etc. In other words, this method of signing must be agreed upon by the persons whose rights, obligations, and interests may be affected by such a document.
