A scanned signature is not sufficient to establish proof of consent for the remote conclusion of a contract, for example. The Court of Cassation was very clear on the issue.
In a judgment rendered on March 13, 2024, the Court of Cassation expressed itself on the subject of the scanned signature, which can be the fact of sending the photo of a signature, not to be confused with the electronic signature. For the judge of the highest court of the judiciary, it does not make it possible to identify the author of the signature and even less to prove his consent. A company in the real estate sector learned this the hard way. Let’s see what exactly the Court says and what happened in this case.
The scanned signature does not clearly identify its author, nor does it link it to the signed document.
On May 15, 2018, the company SJS Immo managed to obtain crowdfunding from the company Horizon MIF Immo. A few months later, on October 25, 2018, SJS informed Horizon that it could not repay the loan. The company behind the loan, Horizon, reminds him that it benefits from a unilateral promise of sale aimed at recovering shares in the company, in the event of SJS’s failure to repay the loan. She wanted to be able to enjoy this right.
Except that the company Horizon did not win its case either on appeal or before the Court of Cassation. For what ? Because within the framework of this unilateral promise of assignment, the rules relating to written proof applied. The act was concluded with scanned signatures.
The Court of Appeal considered that the authors of the signatures “ could not be identified with certainty “. Horizon maintained, for its part, that the scanned signature remained valid and binding on its author, and “ that it is up to the person who disavows his signature to establish that he is not the author », addressing here the partners of the SJS company.
Better to favor electronic signature over scanned signature
To fully understand the decisions of the two courts, you must know the difference between an electronic signature and a scanned signature.
- A scanned signature, an image of the outline of a handwritten signature (taking a photo of your signature and attaching it to a document, for example), is certainly considered a legal electronic signature, but it does not offer any guarantee on the identity of the signature, and therefore does not ensure the integrity of the document on which it is affixed. The scanned signature is considered very easy to forge.
- An electronic signature takes the form of a technical process carried out using a dedicated tool, let’s say DocuSign, one of the best known. An advanced electronic signature makes it possible, in a legal sense, to identify the signatory.
The Court of Cassation thus rejected the appeal of the company Horizon. She maintains and explains that the scanned signature does not offer the same level of reliability as an electronic signature, which guarantees a reliable identification process which links the signatory to the act he signs. The Court of Cassation holds that the scanned signature does not make it possible to identify the author of this signature, nor does it make it possible to prove consent to the obligations arising from the act.
To bring the story to a close, the Horizon company saw its appeal rejected, but it was, in passing, also ordered to reimburse the legal costs incurred by its opponent (the costs), as well as to pay him 3,000 euros for legal costs which were not covered by the costs.
Source : Legifrance
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