Ordinary Emails and the value of a negotiable declaration contained therein

A simple email, if not accompanied by a digitally signed declaration, does not have the efficacy of a private document pursuant to Article 2702 of the Civil Code. Generic expressions of consent or acceptance of a proposal do not constitute a written document pursuant to Articles 1350 and 1351 of the Civil Code.

With ruling no. 22012 of 07.24.2023, the second civil section of the Court of Cassation intervened to clarify an interesting issue, namely the value of a mere email message without a declaration digitally signed by the sender; for the Court, only in the presence of an advanced, qualified or digital electronic signature can a legal transaction with written form be considered concluded “ ad substantiam ” (see ruling published in Guida al diritto , 2023, 46).

The case originates from a dispute that arose over the recognition of the commissions requested for the mediation activity of a real estate agency following a proposal to purchase a property accepted by the prospective sellers by sending a simple email message; the dispute contested the actual acceptance of the proposal by the sellers. If, at the end of the first instance trial, the Court had decided the dispute without going into the merits of the effectiveness of the email message, the Court of Appeal had instead examined the issue in depth, affirming the principle according to which the email message is not comparable to a private document, neither from an evidentiary point of view nor, much less, from a formal point of view. The Court of Cassation finally clarified the point by specifying that the simple email, as it lacks an electronic signature, does not have

the effectiveness of the private agreement provided for by art. 2702 of the Civil Code (also compliant with Cass. Civ Sez. VI, 14.05.2018, n. 11606, in Giust. Civ. Mass . 2018).

The topic deserves a brief discussion.

First of all, the reference legislation on electronic signatures is, at European level, Regulation (EU) No. 910/2014 (“eIDAS Reg.”) and, at national level, Legislative Decree 82/2005 – Digital Administration Code (“CAD”).

Our legal system, implementing the provisions of the eIDAS Regulation, recognises three types of electronic signatures (in increasing order of reliability):

1.   Simple electronic signature : set of data in electronic form that allow a specific document to be traced back to a natural person (e.g. the scanned original signature) (so-called “ FES ”).

2. Advanced electronic signature : set of data in electronic form with the requirements set out in art. 26 of the eIDAS Regulation and the technical characteristics set out in art. 56 of the Prime Ministerial Decree of 22 February 2013, which allow the identification of the signatory of the document and guarantee a unique connection to the signatory, through means over which the signatory can maintain exclusive control (so-called “ FEA ”); an example of FEA is the graphic signature used on tablets by banks and insurance companies.

3.  Qualified electronic signature (or digital signature): electronic signature created by a qualified electronic signature creation device and based on a qualified certificate for electronic signatures (so-called “ FEQ ”). Art. 25 of the eIDAS Regulation specifies that “… a qualified electronic signature based on a qualified certificate issued in a Member State shall be recognised as a qualified electronic signature in all other Member States … ”.

Article 24, paragraph 4 ter, CAD contemplates the possibility that the electronic signature is based on a qualified certificate issued by a certifier established in a State not part of the European Union, when (a) the certifier possesses the requirements set out in the eIDAS Regulation and is qualified in a Member State, or (b) the qualified certificate is guaranteed by a certifier established in the European Union, possessing the requirements set out in the same regulation, or (c) the qualified certificate, or the certifier, is recognised under a bilateral or multilateral agreement between the European Union and third countries or international organisations.

Pursuant to Article 49 of the eIDAS Regulation, it is up to national law to define the legal effects of the different types of electronic signatures and, consequently, which types of electronic signatures are necessary to consider a document validly signed according to Italian law. Article 20 CAD provides that an “… electronic document satisfies the requirement of written form and has the effectiveness provided for by Article 2702 of the Civil Code when it bears a digital signature, another type of qualified electronic signature or an advanced electronic signature or, in any case, is formed, following computer identification of the

its author, through a process having the requirements set by AgID pursuant to art. 71 [adoption of guidelines by AgID, ed.] with methods that guarantee the security, integrity and unalterability of the document and, in a manifest and unequivocal manner, its traceability to the author …” (art. 20 cit.).

For deeds not included in those in points 1 to 12 of art. 1350 of the Civil Code where written form is mandatory (e.g. contracts having as their object real estate and contracts connected to them), the signature is considered valid whether it is affixed via FEQ or made with FEA.

The difference between the two types of signature lies in the legal effects: both the FEA and the FEQ have the effectiveness provided for by Article 2702 of the Civil Code, however, the advanced electronic signature (FEA) can only be used in internal relations between the parties signing the document (see Article 60 of the Prime Ministerial Decree of 22 February 2013), while the qualified electronic signature (FEQ) can also be used against third parties. Returning to the decision in question, the Court of Cassation deserves credit for having decided by adhering to the letter of the Digital Administration Code (Legislative Decree 82/2005) already in force at the time of the facts of the case – dating back to 2008 – focusing attention on the value of the electronic document signed “… with a qualified electronic signature or with a digital signature … ” (Article 20 CAD in the previous formulation); e-mail alone is not enough.

DISCLAIMER : This newsletter provides general information only and does not constitute legal advice from Macchi di Cellere Gangemi. The author of the article or your contact in the office are at your disposal for any further clarification.