Abstract

In many countries around the world laws on electronic or digital signatures have been
emanated. Electronic signature and digital signature are not synonyms, although the distinction
isn’ t quite clear. Generally (in legal doctrine) digital signature is a precise type of electronic
signature that uses digital technology for its generation. Electronic signature can be any thing that
can connect a document to its author, while digital signature should guarantee also the integrity
of the electronic document. The idea seemed great to support e-commerce, but there has been a
rather law application in civil law.

EU brought up it’ s Directive on electronic signatures (1999/93/EC) and Directive on ecommerce
(2000/31/EC), with which it forced all member states and the states that are trying to
be a part of EU to emanate laws on electronic signatures and e-commerce, but as the EU doesn’ t
have the competence to force member states to change their Civil codes, the necessary
modifications in the contract law haven’ t been made. For example the definition of signature in
French Code Civil has been changed from " putting the signature with your own hand" in "
putting the signature personally" . German Bürgerliches Gesetzbuch has introduced the definition
that wherever written form is requested by the law it can be satisfied by a document in valid
electronic form defined by the Law on electronic signatures, except when otherwise is requested.
Croatia hasn’ t made any of such changes.

There has been also opened a wide door to make wide exceptions for application of
electronic documents for some types of contract, by the Directive on E-Commerce (art. 9. comma
2). Croatia with Article 6 comma 2 of the Croatian Law on Electronic Signature (Narodne
novine, 10/02) has wide limitations for almost all types of contract that requires written form.

But there are some other limits for application of electronic documents. For example in
Italy electronic form suits for almost all contracts that should be in written form, but, the majority
of those contracts should be registered by government bodies, and for that is necessary to put tax
stamps on the document, and on electronic document it is still impossible. So you have a legally
valid contract, but you have problems to register it, so attorneys recommend their clients to sign
in classic form. Similar situation is possible by Croatian law in case you have a contract of sale of
mobile goods, that is submitted to registrations by government bodies (e.g. cars, boats…). So you
have a valid sale, but with electronic contract you should request form seller to sign you a valid
paper – written document that you need to register your new goods. You should obtain it in a
court procedure, but it complicates things, so from the practical point of view you make your
contract immediately on paper.

There are no relevant jurisprudence in the civil law countries. It is steel unsafe to go to
court with an electronic contract, because you can't predict with much certainty what is the judge
going to decide in specific case. There is a verdict in Italy in the first degree where just using an
e-mail address was declared as a valid not digital, but electronic signature, but it was changed in
the 2nd degree. It has been caused by the technical neutrality of EU Directive that has been
accepted in a neutral way in Italian legislation, and that doesn’ t supply judges with a precise
definition what electronic signature is.

There is an example where an attorney made experiments with MS word, and it is really
from the legal point of view irregular. If you put in a document (mostly in header or footer) the
option to print date, or author, it changes when you change the computer (as it sometimes
happens with the normal font if it is different from computer to computer, but it is irrelevant for
layers, except the fact that notary acts have to be in courier 10 pt), and PGP doesn’ t notice that
the document has been modified (because it hasn’ t been, but the print is different on different
computers, and that doesn’ t bring certainty from the legal point of view).

The electronic signature has been applied in administrative law mostly for internal
administrative acts. That is a good begging for widening of its application.

Also, a good start has been made with notary electronic signatures. Commercial societies
acts are supposed to be public (published) and are very often notary acts. Croatia has the Court
registry on the web, and there is the duty for the court administrators to type the summery of all
acts deposited in the court registry. In Italy there has been stipulated a contract between the
Notary chamber and the Chamber of commerce (that handles the registry of the firms) that
regulates the procedure of depositing acts in electronic form in the registry. That way, the
procedure has been fastened that is very important for business. In Croatia and in Slovenia it is
not possible because, it is not legally valid to sign a notary act in electronic form.

I firmly sustain that electronic signature is going to have its future, and all the barriers
existing now are slowly going to fall, but the legislation has to leave the door opened at least a
bit, that’ s not the case in Croatia. The first to start using it (in a legally valid way) should be the
government bodies, and similar organs (e.g. notary), and than when it gets proofed and confirmed
in courts of law, commercial subjects are going to start to use it.