The confinement decision taken by the Tunisian authorities in response to the spread of the coronavirus has forced companies and all economic actors to reorganize their way of working by adopting teleworking, and also obliging them to change their ways of doing and thinking in order to adapt to this new and unprecedented situation.
During this period of confinement, transactions, economic and contractual relations continue and must continue, even though that in order to secure them the use of the old method of the handwritten signature in this period of limited mobility is difficult or impossible.
Although common law, namely through the Code of Obligations and Contracts (COC), provides in Article 28 that “A contract by correspondence is perfect at the time and place where the person who has received the offer responds by accepting it ... “ thus allowing the conclusion of agreements at a distance once there has been an “agreement of the parties on the essential elements of the obligation, as well as on all other lawful clauses that the parties consider essential.” There is a chance that, with the sharp downturn in the global economy, trade agreements that usually go smoothly and informally will generate an increase in litigation due to the failure of some parties who were thought to be creditworthy.
Thus, the question is how to secure the exchange of consent on contractual documents in these circumstances where movement is limited, and give them evidentiary and enforceable value. In this case, electronic signatures may be the solution.
Law No. 2000-83 of August 9, 2000, on electronic exchanges and commerce, has come to regulate and define the electronic signature.
The electronic signature is the functional equivalent of the handwritten signature, it gives the document the same legal value as the contract bearing a handwritten signature, thus article 1 provides that “... The regime of written contracts applies to electronic contracts with respect to the expression of will, legal effect, validity and performance to the extent that it is not derogated from by this Act.” Article 453 of the Code of Obligations and Contracts confirmed this since it provides that “an electronic document is a written document consisting of a set of letters and numbers or other numerical signs, including those exchanged by means of communication, provided that it is of intelligible content, and archived on an electronic medium which guarantees its reading and consultation if necessary. An electronic document is evidence of a private document if it is kept in its final form by a reliable process and is reinforced by an electronic signature.”
It follows from these provisions that, for an electronic contract to have evidentiary value, it must be reinforced by an electronic signature.
It should be noted, however, that an electronic signature should not be used on documents which, by law, must be legalized or drawn up in authentic form, such as contracts of sale or donation and contracts for the transfer of shares in companies.
However, for it to be valid, the electronic signature must comply with technical characteristics as defined by the Decision of 19 July 2001 of the Ministry of Communication Technologies and the Digital Economy setting out the technical characteristics of the device for creating the electronic signature.
Anyone wishing to place his or her electronic signature on a document can create this signature by means of a reliable device and should:
- take minimum precautions to avoid any illegitimate use of encryption elements or personal equipment relating to his signature;
- inform the provider of electronic certification services of any illegitimate use of its signature; and
- ensure the veracity of all data it has declared to the provider of electronic certification services and to any person it has asked to rely on its signature.
In the case of a breach of the aforementioned undertakings, the holder of the signature may be held liable for the damage caused to others.
Therefore, the use of a certifier is recommended to guarantee the security and authenticity of the signature. The role of the certifier will be to secure the content of the messages and to verify the identity of the correspondents. In addition, the certifier is a witness to the transaction.
It guarantees the accuracy of the certified information contained in the certificate on the date of its issue, in other words:
- the link between the certificate holder and the signature verification device that is specific to the certificate holder; and
- exclusive ownership by the certificate holder of a compliant signature creation device.
TUNTRUST (the Tunisian National Electronic Certification Agency) issues approvals for such signatures or related applications.
Since March 16, 2020, and in response to the current circumstances, TUNTRUST has implemented the obligation to request electronic certificates remotely via the portal ecert.tuntrust.tn. A user manual is available on the portal to guide users through the new online electronic certificate procedure.