The electronic signature of documents is much more agile and effective compared to the document signed manually, which can facilitate the conclusion of contracts at any time and place, concluding the regulation of the business in a few minutes
There has never been so much talk of the word “readjustment” in modern times. The world has been facing several obstacles in the fight against the new coronavirus, which has resulted in several prevention measures in an attempt to limit the spread of the new disease. Companies have laid off their employees, the working day has been shortened, vacations have been granted and most people, still employed, are on a home office basis.
But how is business? If new contracts arise, if new employees are hired or even situations arise that depend on physical contact for the conclusion and signing of documents?
The answer to these questions is simple: the contracting and signing of documents by electronic means is allowed in Brazil and Brazilian jurisprudence has recognized the legal validity and the possibility of registering electronic documents.
Now, it is worth remembering that freedom of form is one of the guiding principles of contract law, through it the idea that formal or solemn contracts are exceptional in business legal relations is enshrined. That is, from this nuclear commandment there are no problems in admitting the electronic contract as a form of effecting legal business in general.
Please note that in Brazil, Provisional Measure No. 2,200-2, of August 2001, guarantees the validity and effectiveness of electronically signed documents through certification processes provided by the Brazilian Public Key Infrastructure (ICP-Brasil).[1]
Specifically, Article 10, paragraph 2 of MP 2.200 also admits the use of other means of proving the authorship and integrity of electronic documents, including those using certificates not issued in accordance with ICP-Brasil, provided that this is agreed between the parties and that these certificates are expressly admitted by them as valid.
As preliminarily pointed out, Brazilian jurisprudence has already recognized the legal validity of contracts signed electronically, as long as it is possible to assess the express expression of Will of the signatories, producing effects in the legal world.
In the meantime, the Superior Court of Justice (STJ) has already recognized the enforceability of an electronically signed contract through a digital certificate without the signature of witnesses, in addition to stating that the authenticity of the signatures of the parties conferred by the certifying entity, as a disinterested and reliable third party, would fill this lack.[2]
As a curiosity, in Brazil there are several certification entities that can help in the conclusion of distance business and improve your company, such as DocuSign, Clicksign, among others, which are private certification authorities that issue digital certificates and are in accordance with Brazilian legislation, being compatible with international standards of electronic signature.
By virtue of the arguments raised, it is concluded that digitally signed contracts are endowed with legal validity and qualify in true judicial executive titles, similar to those contracts signed in person with the parties. However, it is necessary to point out that there are legal transactions provided for in the legislation that require a solemn form, such as a public deed.
Finally, if your company adopts such a mechanism, we separate three essential tips that must be observed in the adoption of digital document signing:
It is recommended that, even in the virtual plan, the signature by two witnesses (also electronically) is also provided, to avoid possible questions regarding the enforceability of contracts;
In the case of the use of certifying entities not certified by ICP-Brasil, It is suggested that the document expressly provide for the form of signature adopted and that the parties by mutual agreement recognize as valid and effective;
If a document involves the jurisdiction of another country (such as international M&A, franchising, international contracts), the legal validity must be attested by professionals from other countries.
Rafael De Sordi Barbosa Martins
Lawyer at TM Associados and postgraduate at GV LAW-Business Law
[1] available at: http://www.planalto.gov.br/ccivil_03/MPV/Antigas_2001/2200-2.htm
[2] STF, REsp nº 1.495.920/DF, rel. min. Paulo de Tarso Sanseverino, j. 07/06/2018.
STF: it is Constitutional the incidence of ISS in franchise agreements
It is Constitutional the incidence of ISS-tax on services of any nature in franchise agreements. This is the latest decision of the STF.
As previously disclosed on our website, the STF plenary would decide for the constitutionality of the impact of the ISS on franchise agreements between the 22nd to the 28th of May.
And finally the decision came out. For the STF, the municipal tax is levied on franchising.
The issue was judged in the virtual plenary, in a vote that ended on Thursday, 28. The rapporteur, Minister Gilmar Mendes, was accompanied by Alexandre de Moraes, Edson Fachin, Cármen Lúcia, Luiz Fux, Rosa Weber, Ricardo Lewandowski and Roberto Barroso.
Minister Gilmar Mendes, rapporteur, voted to dismiss the appeal and fixed the following thesis:
“The incidence of tax on services of any nature (ISS) on franchise contracts (franchising) is constitutional (items 10.04 and 17.08 of the list of services provided for in the Annex to complementary law 116/03).”
Gilmar mendes
The full argument of the court was that it does not violate the constitutional text nor does it deviate from the current guidance of the court to charge ISS on franchise agreements. “It should be reiterated that franchise agreements are of a mixed or hybrid nature, which encompasses both obligations to give and to do”.
Gilmar Mendes was accompanied by Alexandre de Moraes, Edson Fachin, Carmen Lucia, Luiz Fux, Rosa Weber, Ricardo Lewandowski and Roberto Barroso.
You can read the integra of the decision by the link below:
ISS decision franchise agreements
TST: foreclosure clause inserted by the donor of the property does not apply in labor execution
On May 21, 2020, the fifth class of the Superior Labor Court (TST), ratified the understanding that the non-foreclosure clause inserted by the donor of the property has no applicability in the execution of Labor debts.
The context of the decision is based on a labor complaint in which, at the enforcement stage, the first-degree Court ordered the claimant to analyze the real estate registrations existing in the process and indicate which property or properties he intended to seize. However, it was found that half of the properties had been transferred to the partner through donation, with a clause of non-foreclosure registered before the proposal of the action. Therefore, the judge dismissed the application for attachment.
When examining the facts, the fifth class of the TST understood that the non-foreclosure clause does not prevail when it comes to labor enforcement, as provided for in Article 30 of the Tax Enforcement Law. In fact, Article 889 of the CLT provides that, in case of omission, the provisions of the law on tax executions must be applied.[1]
[1] to the procedures and incidents of the enforcement process, the precepts that govern the process of the Tax Executives for the judicial collection of the active debt of the Federal Public Treasury are applicable, insofar as they do not contravene this title.
Check out the decision:
Decision
Corregedor edits rule on Electronic Travel Authorization for minors
On 04/06/2020, the National Internal Affairs Office of Justice issued a normative act ( provision n.103/2020) that establishes the Electronic Travel Authorization (AEV), national and international, for children and adolescents up to 16 years old, unaccompanied by both or one of their parents. The issuance of the declaration will be exclusively through the system of electronic notarial acts (e-Notariado), accessible only through the link www.e-notariado.org.br.
According to this provision, the Electronic Travel Authorization will comply with all the formalities required for the practice of the electronic notarial act, provided for in provision n.100/2020, such as, for example, conducting a notarial videoconference to capture the consent of the parties on the terms of the legal act; agreement expressed by the parties with the terms of the electronic notarial act; digital signature by the parties, exclusively through the e-notary; and signature of the notary with the use of digital certificate ICP-Brazil.
The Electronic Travel Authorization has the same value as the private instrument issued in physical form and can be presented to the Federal Police and to road, maritime or airport transport companies.
Provision No. 103/2020 comes into force 60 days after its publication.
See the full provision below:
Provimento_103Download
Digital signature of documents in Times of coronavirus (COVID-19)
The electronic signature of documents is much more agile and effective compared to the document signed manually, which can facilitate the conclusion of contracts at any time and place, concluding the regulation of the business in a few minutes
There has never been so much talk of the word “readjustment” in modern times. The world has been facing several obstacles in the fight against the new coronavirus, which has resulted in several prevention measures in an attempt to limit the spread of the new disease. Companies have laid off their employees, the working day has been shortened, vacations have been granted and most people, still employed, are on a home office basis.
But how is business? If new contracts arise, if new employees are hired or even situations arise that depend on physical contact for the conclusion and signing of documents?
The answer to these questions is simple: the contracting and signing of documents by electronic means is allowed in Brazil and Brazilian jurisprudence has recognized the legal validity and the possibility of registering electronic documents.
Now, it is worth remembering that freedom of form is one of the guiding principles of contract law, through it the idea that formal or solemn contracts are exceptional in business legal relations is enshrined. That is, from this nuclear commandment there are no problems in admitting the electronic contract as a form of effecting legal business in general.
Please note that in Brazil, Provisional Measure No. 2,200-2, of August 2001, guarantees the validity and effectiveness of electronically signed documents through certification processes provided by the Brazilian Public Key Infrastructure (ICP-Brasil).[1]
Specifically, Article 10, paragraph 2 of MP 2.200 also admits the use of other means of proving the authorship and integrity of electronic documents, including those using certificates not issued in accordance with ICP-Brasil, provided that this is agreed between the parties and that these certificates are expressly admitted by them as valid.
As preliminarily pointed out, Brazilian jurisprudence has already recognized the legal validity of contracts signed electronically, as long as it is possible to assess the express expression of Will of the signatories, producing effects in the legal world.
In the meantime, the Superior Court of Justice (STJ) has already recognized the enforceability of an electronically signed contract through a digital certificate without the signature of witnesses, in addition to stating that the authenticity of the signatures of the parties conferred by the certifying entity, as a disinterested and reliable third party, would fill this lack.[2]
As a curiosity, in Brazil there are several certification entities that can help in the conclusion of distance business and improve your company, such as DocuSign, Clicksign, among others, which are private certification authorities that issue digital certificates and are in accordance with Brazilian legislation, being compatible with international standards of electronic signature.
By virtue of the arguments raised, it is concluded that digitally signed contracts are endowed with legal validity and qualify in true judicial executive titles, similar to those contracts signed in person with the parties. However, it is necessary to point out that there are legal transactions provided for in the legislation that require a solemn form, such as a public deed.
Finally, if your company adopts such a mechanism, we separate three essential tips that must be observed in the adoption of digital document signing:
It is recommended that, even in the virtual plan, the signature by two witnesses (also electronically) is also provided, to avoid possible questions regarding the enforceability of contracts;
In the case of the use of certifying entities not certified by ICP-Brasil, It is suggested that the document expressly provide for the form of signature adopted and that the parties by mutual agreement recognize as valid and effective;
If a document involves the jurisdiction of another country (such as international M&A, franchising, international contracts), the legal validity must be attested by professionals from other countries.
Rafael De Sordi Barbosa Martins
Lawyer at TM Associados and postgraduate at GV LAW-Business Law
[1] available at: http://www.planalto.gov.br/ccivil_03/MPV/Antigas_2001/2200-2.htm
[2] STF, REsp nº 1.495.920/DF, rel. min. Paulo de Tarso Sanseverino, j. 07/06/2018.
Decree circulating on the Internet of Lockdown in SP on 21.05.2020 is false!
Dear customers, friends and readers!
The message about the lockdown decree in São Paulo is false. Governor João Doria denies that he has decreed lockdown in São Paulo on the afternoon of today, 05/21/2020.
TmAssociados #WeCare #Fake News