Following the ruling of its Commercial Chamber on 13 March 2024 [1], the French Cour de Cassation has confirmed that a scanned signature affixed to a legal act does not constitute sufficient evidence of the consent of its author. Although a scanned signature is still valid, it is not as conclusive as a trusted electronic signature, which remains the most reliable method of signing documents remotely.

In the particular case submitted to the jurisdiction of the court, the beneficiary of a unilateral promise to sell shares sought to enforce the promise but the promisors objected by arguing that it was not their signatures. The beneficiary's request was rejected by the Versailles Court of Appeal [2] on the grounds that he had not provided sufficient proof that the document had been validly signed by the promisors, since only their scanned signatures appeared on the document. According to the Court of Appeal judges, while the method of scanning signatures is valid, it cannot be equated with the one used for electronic signatures, which benefits from the presumption of reliability provided for in article 1367, paragraph 2 of the French Civil Code.

It follows from this judgment that sending a scanned signature on a legal act by e-mail, even if accompanied by the identity document of the signatory, does not allow to confirm consent of the signatory to the legal act. Indeed, a third party could easily affix a scanned signature to any legal act and then proclaim that it was validly signed by the supposed author of the signature.

In a context where it is becoming increasingly common for legal documents to be signed remotely, whether by scanned pages or by electronic signature via specialized platforms, this judgment is a reminder of the necessity to be able to identify the author of a signature and prove his consent to the document. It also recognizes that the "authors" of scanned signatures have significant grounds to contest the authenticity of such signatures, thereby introducing a high degree of legal uncertainty to these procedures. As the first paragraph of article 1367 of the French Civil Code stipulates that "the signature necessary for the perfection of a juridical act identifies its author [and] manifests his consent to the obligations arising from this act", a contested scanned signature would therefore be no more than a prima facie evidence by writing (commencement de preuve par écrit) which has to be corroborated by another means of proof in order to constitute evidence of the consent of the author, in accordance with the requirements of article 1361 of the French Civil Code.

In the event of a signature being exchanged by means of a scanned signature, practitioners will need to gather the information required to establish (i) the identity of the signatory and (ii) his consent to the legal act.

Specialized electronic signature platforms complying with the requirements of article 1367 of the French Civil Code and enabling the author of electronic signatures to be identified by an authentication system (by SMS or e-mail in particular), have seen their methods enshrined by this judgment.

Footnotes

[1] Cass. Com., 13 March 2024 – n° 22-16.487
[2] CA Versailles, 13e ch., 8 March 2022 – n° 21/01343