Electronic contracts and signatures
Electronic contract availability
Are electronic contracts legally valid in your jurisdiction? If so, what rules and restrictions govern their formation (including any mandatory or prohibited provisions and contract formats)?
The conclusion of a contract requires a mutual expression of intent by the parties. The expression of intent may be express or implied. The validity of a contract is not subject to compliance with any particular form (unless specifically prescribed by law). There are no specific regulations on electronic contracts, but based on the general rules cited above an electronic contract is legally valid unless a particular form (eg, a handwritten signature or notarisation) is required by law. However, the law provides for an authenticated electronic signature which, if applied, is deemed equivalent to handwriting.
Are there any limitations orrestrictions on transactions that can be concluded through electronic contracts?
E-signatures cannot be used where the law requires a specific form – for example, in the case of a will (which must be handwritten in its entirety) or real estate deals (requiring a public deed).
Do any data retention requirements apply to electronic contracts?
The Code of Obligations requires the accounting records, accounting vouchers, annual report and audit report to be retained for 10 years from the expiry of the financial year in which they were created. The accounting records and accounting vouchers may be retained on paper, electronically or in a comparable manner, provided that correspondence with the underlying business transactions and circumstances is guaranteed thereby and provided that they can be made readable again at any time.
‘Accounting vouchers’ are any documents on paper, in electronic format or in comparable form that are required to verify the business transaction. These particularly include contracts, business letters, communications from public authorities (eg, tax authorities) and emails, if such documents are relevant for the full understanding of an accounting entry (even if only potentially relevant). This is independent of whether they are in digital form or hard copy.
To the extent that records contain personal data as defined by the Federal Data Protection Act, these records may not be kept for a longer period than is necessary for achieving the purposes for which the personal data was collected. After the applicable maximum retention period has lapsed, the documents should be disposed of. An exception applies in the event of reasonable anticipation of litigation, tax audits or investigations.
Are any special remedies available for the breach of electronic contracts?
No, general remedies apply.
Are electronic signatures legally valid in your jurisdiction? If so, what rules and restrictions govern their use?
An authenticated e-signature is deemed equivalent to a handwritten signature. However, an authenticated e-signature can be obtained only from a recognised authority. The (fairly limited) list of all such authorities in Switzerland is available on the competent federal authority’s website. Authenticated e-signatures are treated like handwritten signatures. Other than that, digital signatures are valid only if there is no legal requirement for a document to be in writing. Many types of contract do not require handwritten signatures but can be agreed orally, electronically or otherwise. In practice, contracts are often concluded electronically (eg, online shops or email). However, if a contract is disputed, the admissibility and validity of the use of an electronic agreement concerns questions of evidence. Typically, companies set out in their agreements that these must be in writing. In civil proceedings, any electronic records (eg, emails, scans or print-outs of paper records) can serve as evidence. However, a court may ascribe less evidentiary value to electronic records or a print-out than it would to a document originally drawn up on paper.
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