TJSP: electronically signed agreements are valid and do not require a “physical” copy
On September 17, the Court of Appeals of the State of São Paulo (“Tribunal de Justiça do Estado de São Paulo” or TJSP), when judging a Civil Appeal in which a Brazilian bank (“Appellant”) and a natural person (“Appellee”) were parties, decided that electronically signed agreements are valid and do not require a physical copy. Check out below!
In this case, the Appellant wanted to reverse the judgment, which dismissed the search and seizure action filed against the Appellee without judging the merits of the case because the credit certificate had not been presented to the registry office. The parties had entered into a financing agreement to acquire a motor vehicle, which was granted as fiduciary collateral and, having the Appellee defaulted in the repayment of the credit, the Appellant requested the search and seizure of the vehicle.
For the Appellant, the judgment should be reversed since the Brazilian Civil Code guarantees the freedom of agreement forms so that the electronic issuance and signature of the bank credit certificate (“Cédula de Crédito Bancário” or CCB) is not prohibited. The Appellant also argued that the physical presentation of the agreement could not be required in digital processes, as well as reinforced the validity of electronic documents and their signatures.
For the TJSP, the lower court judgment should be annulled for the following reasons:
(i) CCB has a hybrid nature, representing an extrajudicial enforceable instrument and, at the same time, a negotiable instrument, transferable by endorsement;
(ii) The search and seizure action requires only proof of the contracting of fiduciary assignment and notification to characterize the debtor’s arrears;
(iii) Once the requirements are met, it is unnecessary to present the physical copy of the CCB, since digital documents are valid as proof of the contracting of the fiduciary assignment.
In view of that, TJSP understood that as the Provisional Measure No. 2.200/01 ensures the legal validity of documents issued electronically extinguishing the action due to non-presentation of the “original” CCB was not the correct understanding. Therefore, the judgment was annulled, allowing the action to proceed to presentation of the adversarial arguments of the Appellee and the judgement of the merits of the action.
