Up until recently, many different definitions of ‘electronic signature’ and ‘durable data carrier’ circulated in a number of different laws, which lead to confusion and legal uncertainty. One of the typical problems under Belgian law was the fact that real estate could not be sold electronically, leading to disputes around sales of real estate property that were deemed invalid because the confirmation by the buyer or the seller had been given only on a digital carrier rather than on a paper sqles agreement.
The Law of 20 September 2018 now creates a coordinated and coherent terminology and leads to legal harmonization, thuis eliminating a number of barriers for the valid conclusion of electronic contracts.
Harmonization of the legal concepts ‘electronic signature’ and ‘durable data carrier’
Over the past twenty years, a number of legislative initiatives have brought legal changes aimed at making the use of the electronic signature possible. These various initiaves were never coordinated and as a result, no less than fifteen different definitions can be found in Belgian law to refer to electronic signatures.
The same goes for the notion of “durable data carrier”. Since the notion of a “durable data carrier” first appeared in Belgian law in the early 90s, various definitions have been included in numerous laws and regulations, leading to the same lack of harmonization as with the concept of electronic signatures.
Now, for the first time, the Belgian rules have been coordinated and aligned with the definitions under relevant EU Regulations.
Eliminating obstacles to the conclusion of contracts by electronic means
Subsequently, the Code of Economic Law, the Civil Code, the Code of Economic Law, the Code of various rights and taxes, the Belgian Company Code and the Social Criminal Code are adapted to current technological developments.
The legislator expressly provides that the special categories of agreements referred to in Article XII.16 of the Code of Economic Law (including the sale of immovable property) can also be concluded electronically. Only in exceptional circumstances, when a judge in a specific case finds that there are practical obstacles to concluding the contract, he can judge that the contract was not validly concluded (for example, when a certain certificate would be required for the conclusion of the contract and this certificate is issued by a government agency only on paper).
The new law thus seeks to remind the judge that agreements belonging to particular categories, such as real estate contracts and in connection with guarantees, can indeed be concluded electronically. A judge can no longer argue that a property can not be sold by email and may not refuse proof because it is in the form of an email. The judge can only rule that the sale is invalid if he specifically establishes the presence of practical obstacles that in the present case prevent the parties from entering into an agreement electronically.
