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)?
Electronic agreements are generally lawful, valid and enforceable in Brazil.
General contractual rules apply to agreements entered by electronic means. Terms offered electronically in general bind the proponent and the contract is considered formed when the other party accepts the offer. In the absence of a contractual choice of law, the Introductory Act to the Brazilian Law System establishes that an obligation will be governed by the law of the country where it was undertaken and determines that contractual obligations are deemed undertaken in the country where the proponent resides. Nevertheless, if the agreement involves a consumer relationship, consumer authorities tend to determine that Brazilian law and venue apply.
Agreements (either executed by electronic means or otherwise) are in principle lawful, valid and enforceable in Brazil if they involve capable parties and a legal and determined or determinable object, and unless the law requires specific formalities (eg, the acquisition of real estate depends on the execution of a written public deed). So long as the criteria above are met, electronic agreements have the same validity as physical ones. The Brazilian Civil Procedure Code expressly acknowledges the validity of electronic documents as proof.
There are no requirements in relation to the form of execution of electronic agreements, as long as the party’s willingness is evidenced. Checkboxes, acceptance buttons, e-mail replies or the insertion of electronic signatures in electronic document are the most common practices. For practical purposes, it is important that both parties are able to demonstrate the contract execution and to verify if the person on the other side is capable and duly empowered to do so.
Click-wrap contracts may be characterised as adhesion contracts and, as such, must be worded clearly, and in legible print. When entered with consumers, there are rules related to the format and display of text that may apply.
According to the Brazilian Civil Code, the same means that were used for the execution of the agreement must be available for its termination. The e-Commerce Decree (7,962/2013) provides that if a supplier allows the consumer to enter the agreement online, the same supplier must grant the consumer the right to terminate the agreement also online.
Are there any limitations or restrictions on transactions that can be concluded through electronic contracts?
Yes. Some types of transaction cannot be completed through electronic contracts because the law requires specific formalities. For instance, the acquisition of real estate or a will depends on the execution of a written public deed.
In addition, physical contracts signed by the parties and by two witnesses may be subject to a fast-track enforceability procedure, which in principle is not applicable to electronic contracts that lack the witnesses’ signatures.
Do any data retention requirements apply to electronic contracts?
There are no data retention requirements applicable specifically to electronic contracts under Brazilian law. There are data retention obligations applicable generally to internet application providers, in relation to the date time and internet protocol access of their platforms by users.
Are any special remedies available for the breach of electronic contracts?
There are no special remedies available for the breach of electronic contracts. General contractual and civil laws will apply.
Are electronic signatures legally valid in your jurisdiction? If so, what rules and restrictions govern their use?
Yes. Electronic signatures are generally valid in Brazil.
Provisional Measure 2200-2/2001 (Brazilian Public Key Infrastructure Provisional Measure) created the Brazilian Public Key Infrastructure (Brazilian PKI), with the purpose of ensuring the authenticity, integrity and validity of electronic documents, as well as ensuring the performance of secure electronic commercial transactions. The Brazilian PKI is in charge of defining the rules and technical requirements that allow the offering of electronic certification services in Brazil.
Documents executed using certificates homologated by Brazilian PKI are presumed authentic and true, unless proved otherwise. Documents certified by other means, or simply not certified, are still valid, but not presumed authentic. This means that if their authenticity is challenged, an expert may have to be engaged to verify and attest it.