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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)?

Pursuant to Article 1108 of the Civil Code, there are four conditions that must be fulfilled in Belgium to validly conclude an agreement:

  • consent;
  • legal capacity;
  • object; and
  • admissible cause.

Although a contract does not necessarily need to be in writing, a written agreement (including an electronic agreement) and a signature are strongly recommended in order to avoid issues of proof.

For an electronic contract to be valid, there are no specific formalities to be observed. The legislator has taken a functional approach: the conditions to conclude a contract are deemed fulfilled if the functional qualities of those conditions are safeguarded. Therefore, a succession of understandable characters that are accessible for subsequent consultation, whatever the medium or modalities for transmission may be, is deemed to be a document in writing. The validity of digital signatures is governed by EU Regulation 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation). 

Are there any limitations or restrictions on transactions that can be concluded through electronic contracts?

Yes, some restrictions apply with respect to transactions that can be concluded through electronic contracts. Pursuant to Article XII.16 of the Code of Economic Law, the following types of transaction cannot be concluded through electronic contracts:

  • contracts that create or transfer real estate rights, with the exception of lease agreements;
  • contracts in respect of which the law requires the intervention of a court, an authority or a professional group exercising a public task (eg, a notary public);
  • contracts in respect of personal or real estate securities or guarantees which are made by persons acting for purposes outside their trade or professional activities; and
  • contracts regarding family and inheritance law.

Data retention

Do any data retention requirements apply to electronic contracts?

No specific data retention requirements apply in respect of electronic contracts, other than the normal retention periods applicable to any type of contract. Pursuant to the Code of Civil Law, claims out of contract lapse after 10 years. Therefore, it is generally recommended to retain proof of contracts concluded electronically for at least 10 years after the date of expiry or termination of the contract.

In addition, pursuant to Article XII.7 of the Code of Economic Law, online service providers must provide customers with the following information:

  • whether the service provider will archive the contract that was concluded; and
  • whether such a contract will be accessible to the customer.

The contractual provisions and general conditions of the contract must be made available to the customer in such a way that the customer can store and display them.

Remedies

Are any special remedies available for the breach of electronic contracts?

There are no special remedies available for the breach of electronic contracts. The common remedies for breach of contract also apply to the breach of electronic contracts, including:

  • specific performance;
  • temporary suspension;
  • termination for cause; and
  • damages, usually enforced via court actions.

Nevertheless, multiple out of court options are available for unfair commercial practices, online or offline. For example, the Federal Public Service Economy handles complaints from consumers who report to have been victims of online fraud or scams and conducts investigations which can lead to action being taken against the digital business or online service provider.

Further, a Consumer Mediation Service exists, which helps consumers to challenge unfair practices. Finally, consumers and undertakings can report unfair market practices (eg, misleading practices, fraud, swindle and scams) via a specific website.

Electronic signatures

Are electronic signatures legally valid in your jurisdiction? If so, what rules and restrictions govern their use?

The rules regarding electronic signatures are based on the eIDAS Regulation. In Belgium, these principles have been implemented through a Law of 21 July 2016 on eIDAS and electronic archiving.

Pursuant to Article 3(10) of the eIDAS Regulation, an ‘electronic signature’ means data in electronic form, which is attached to or logically associated with other data in electronic form which is used by the signatory to sign. An electronic signature can be advanced or qualified if it fulfils certain additional requirements set out in Articles 26 and 3(12) of the eIDAS Regulation.

The eIDAS Regulation specifies that an electronic signature (irrespective of the technology used) may not be refused as evidence in legal proceedings solely for being an electronic signature or not a qualified electronic signature. Nevertheless, pursuant to Article 25 of the eIDAS Regulation, only a qualified electronic signature has a legal effect that is fully equivalent to the legal effect of a handwritten signature.

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