Enforceability of contracts executed by using electronic means in Belarus

1) Is a contract legally enforceable if the parties exchange scanned copies of signed documents by email?

Yes. The exchange of scanned copies via email is equivalent to simple written form and has legal force, provided that the signatories can be identified. However, in order to avoid potential disputes in the future, we recommend that the contract expressly stipulate this method of document exchange, specifying the email addresses from which such correspondence will be conducted, and recognizing it as proper and duly authorized.

Additionally, we recommend that you pay attention to the method of signing the document.

2) What requirements must be met for an electronic signature to be considered valid and legally binding?

For an electronic digital signature (hereinafter – DS, digital signature) to be recognized as valid and legally significant in Belarus, the following basic requirements must be met:

• Use of certified means: the DS must be created and verified using certified cryptographic information protection means;
• The signatory must hold a valid public key certificate issued by a service provider, which confirms that the key belongs to a specific individual or organization;
• If an individual signs a document on behalf of an organization, information about his/her authority is required. This may be implemented through an attribute certificate.

Compliance with these conditions equates an electronic document signed with a DS to a paper document with a handwritten signature and seal, giving it the same legal force.

Please note that documents signed with a foreign DS have legal force in Belarus only for Kazakhstan and the Russian Federation, as verification of other digital signatures is not available in Belarus. 

3) Can a contract be executed entirely electronically without a paper original?

Yes. A contract in written form may be concluded as a single electronic document signed by the parties using technical means that allow the identification of the party (as a rule, this is a digital signature).

The use of third-party resources that allow signing documents in systems carries risks of them being declared invalid and disputes in the future regarding the signatory.

4) Are contracts and agreements concluded through online platforms or mobile applications legally enforceable?

Yes. Contracts and agreements concluded through online platforms or mobile applications have legal force if the requirements of civil legislation on the written form of a transaction and the expression of the parties' intent are met. In accordance with Article 162 of the Civil Code of the Republic of Belarus (hereinafter - the Civil Code), the written form is considered to have been observed when a contract is concluded by exchanging electronic documents or performing conclusive actions (payment, registration, clicking a button, etc.).

In practice, click-wrap (active action - clicking the "I accept" button) and browse-wrap (use of the website as acceptance) are used.

5) How can a party prove in court that an electronic document was actually signed by a particular person and that its content has not been altered?

The authenticity of an electronic document can be verified by the DS. To do this, it is necessary to contact the service provider to verify the public key (belonging to a specific person) and the attribute certificate (verification of authority) of the DS..

For reference: an electronic document is a document signed with a digital signature.

6) Can a contract be considered validly executed if one or both parties sign it using a facsimile signature?

Yes. A contract may be considered concluded when using a facsimile, subject to the following conditions:

1. the use of a facsimile does not contradict the legislation;
2. the use of a facsimile does not contradict the agreement of the parties, that is, the contract does not contain a prohibition on its use;
3. identification of the party to the contract is ensured, that is, the facsimile makes it possible to accurately establish that the contract was signed by that very party to the contract (an authorized representative).

Please note that in Belarus a list of primary accounting documents has been established for which the use of analogues of a handwritten signature is not permitted (for example, the waybill, the property write-off act, the fixed assets acceptance and transfer act, and others).

7) In what circumstances does the law require a specific form of signature or a paper original despite the possibility of executing the contract electronically?

For the conclusion of certain types of contracts, the preparation of a single document signed by the parties is required. In these cases, other methods of concluding a contract do not indicate non-compliance with the form of the contract by its participants.

Such contracts include, for example:

• Contract for the sale of real estate (Article 521 of the Civil Code);
• Contract for the sale of an enterprise (Article 531 of the Civil Code);
• Lease contract for a capital structure (building, structure), an isolated premises or a parking space (Article 622 of the Civil Code);
• License contract in the case where its state registration is provided for (Part 3, Clause 4, Article 987 of the Civil Code).

8) What risks should businesses consider when using electronic methods to execute and sign contracts?

Electronic methods of concluding and signing contracts carry the following risks:

• risks associated with the contract being declared invalid due to non-compliance with the required form of the contract;
• the risk of the DS being used by an unauthorized person or the compromise of the DS key due to the disclosure of passwords, key storage devices, or access credentials to third parties;
• the risk of the electronic method of document exchange not being recognized as proper, in particular in the absence of an agreement between the parties on such method, agreed email addresses, or the ability to reliably identify the sender of the document;
• the risk of breach of document integrity: alteration of its content after signing, loss of files, failures of the electronic document management platform, or inability to verify the DS;
• the risk that the person who signed the document lacks the authority to act on behalf of the contracting party;
• the risk that a Belarusian DS or the chosen electronic service may not be recognized abroad when signing a foreign currency contract;
• risks relating to proving that the document was signed.

9) Which types of contracts cannot safely be executed entirely electronically?

Contracts that are subject to notarization and/or state registration (for example, certain real estate transactions) cannot be safely concluded by way of a simple exchange of electronic documents, scans, or emails. Such agreements must be concluded either in hard-copy (paper) form or as an electronic document signed with a qualified digital signature. 

10) Who bears the risk if an account or electronic signature is compromised and a third party signs the contract?

The risk of compromise is borne by the party whose identification means (login, password, digital signature) have been compromised.

If the data has been compromised and the contract was signed by a third party, the transaction is considered concluded on behalf of and in the interests of that person. If the person whose data has been compromised approves this transaction (for example, performs the contract: acceptance of goods, payment, etc.), then the rights and obligations under this transaction will arise for that person.

Authors: Veranika Klachko, Polina Sachava