eSignature Legality
in Switzerland
In Switzerland, electronic signatures are used where traditional wet ink signatures are not mandatorily required by the law. In fact, certain electronic signatures have a better admissibility than traditional wet ink signatures owing to the advanced ability to prove the signature’s authenticity. Digital signatures require digital certificates, and are tend to be used less commonly than an electronic signature. This is likely because these signatures require the involvement of a comparatively complex infrastructure with the interaction of a third-party trust service provider.
Paramount Conditions:Paramount Conditions: Existence, Authenticity and Valid Acceptance are three paramount conditions which provide sanctity to electronic signatures under Swiss Laws. a QES along with an authenticated stamp has the same legal validity and admissibility as a handwritten signature.
Legal sanctity of e-signatures and e-documents
Apart from eIDAS regulations that are applicable to all member states of the European Union, there are two main laws covering the utilization of electronic signatures in Switzerland:
- Swiss Federal Act on Electronic Signatures (FAES) – which defines four kinds of electronic signatures with increasing levels of trustworthiness and evidentiary value: Simple electronic signature, Advanced electronic signature (AES), Regulated electronic signature (RES), and Qualified electronic signature (QES)., regulates the conditions under which service providers may use certification services with electronic signatures, and outlines a provider’s obligations and rights applicable to the provision of certification services.
- The Swiss Code of Obligations (CO) - which grants a certificate-based digital signature the same legal validity and admissibility as a handwritten signature provided the signature is supported by a certificate issued by a trusted provider of certification services in Switzerland.
Article 2(g) of the FAES specifies that a digital certificate used for a RES or QES must be issued by an authorized organization that gives services in accordance with the requirements set out in the FAES and who is certified by an accredited conformity assessment body. Additionally, a qualified certificate can only be issued to a natural person and must contain a declaration stating that the electronic signature is valid for that document only.
Under Swiss Civil Procedure Code, Swiss courts are free in their appraisal of the evidence presented to them, and there’s no preference by law for different type of evidence. Thus, no signature shall be denied validity or enforceability solely because it is in an electronic form or that it does not meet the requirements for a QES.
However, if a SES or AES is used in a transaction, the onus of demonstrating that the integrity of the content of the document was preserved falls on the signatory. Additionally, while SES, AES, and RES might not be denied legal effect and admissibility as evidence, it doesn’t necessarily mean that it’ll receive identical legal treatment as a handwritten signature. In Switzerland, a QES has the same legal validity and admissibility as a handwritten signature.
Use cases of electronic signature in Sweden:
- Commercial agreements
- Purchase orders
- Non-Disclosure Agreements (NDAs)
- Invoices
- Sales agreements
- Order acknowledgments
- Distribution agreements
- Services agreements
- Software license agreements
- Copyright, patent, and trademark licenses
- Employee invention agreements
- Benefits paperwork
- Privacy notices
- Commercial and residential lease agreements
- Consumer agreements
- Service terms
- Consumer credit agreements
- Purchase orders
- Shipment documents
- Order confirmations
- Software licenses
- User manuals
The COVID-19 pandemic has radically changed our lifestyles and how one conducts business. Most non-essential companies have established completely remote work setups. This “new normal” has concentrated more attention on electronic means of transactions. The “new normal” in the age of Covid-19 proceeds to facilitate the use of eSignatures.
Documents that cannot be e-signed in Switzerland:
While a QES combined with an authenticated stamp has an identical legal effect as a handwritten signature, a QES may not actually be sufficient to validly conclude a contract where Swiss law requires a qualified written form. Swiss law provides for a variety of mandatory written form requirements that may apply, looking at the scope and content of the contract in question. Thus, it’s recommended to assess the necessity for a handwritten signature on a case-by-case basis, considering the scope and content of the documents in question. Specific use cases that generally require a traditional written signature include:
- Tenancy and employment law for apprenticeships related documents
- Contract of surety or holographic wills
- Marriage and inheritance contracts
- Real estate transactions
- Establishment of legal entities, corporations, or foundation
- Amendment of statutes of legal entities, corporations, or foundations
- Assignment of claims, bankruptcy
- Real property transfer contracts and deeds
- Inheritance contracts
- Contracts of surety conducted with a natural person
- Articles of incorporation of listed and limited liability companies
- Last will
DISCLAIMER
Certinal is making available the information and materials in this article for informational purposes only and is meant to help companies understand eSignature’s application in a legal framework. Laws change rapidly and Certinal makes every reasonable effort to keep the content of this article current, hence Certinal makes no claims or representations that the information contained in this article is true, accurate, correct, or current. The law is different from jurisdiction to jurisdiction, and even similar laws may be interpreted differently in different courts or in different places. Since these factors differ according to individuals and businesses, Certinal is not liable for any consequence of any action taken by any third party relying on material/ information provided under this article. The contents hereof should not be construed as legal advice in any manner whatsoever. In cases you require any assistance; you must seek independent legal advice.
