Evidence Agreement and Electronic Signature: Legally Securing Your Digital Contracts

The qualified signature is the only level for which the law recognises a presumption of reliability. For the other two levels, the legal value is not nil, but it will have to be proven in the event of a dispute, which can prove difficult and costly.

Concrete example: A consulting firm sends its engagement contracts by email, asking the client to reply "approved". In the event of a challenge, the service provider will have to demonstrate that the message genuinely came from the client, that it has not been altered and that the client clearly understood what they were committing to. Without robust technical traceability, this exercise can be perilous before a court.

What is an evidence agreement and why is it essential?

The evidence agreement is a mechanism provided for by Article 1356 of the Civil Code. It allows the parties to a contract to define in advance the rules that will apply to proving the existence, content and performance of their contractual commitments.

Under French law, the proof of legal acts is governed by relatively strict statutory rules above a certain threshold (currently set at 1,500 euros by Article 1359 of the Civil Code, as amended by Decree no. 2023-863 of 8 September 2023). Above this amount, the proof of a legal act may in principle only be provided in writing.

The evidence agreement allows the parties to:

• Define which media will be recognised as evidence (emails, signed PDFs, platform records, computer logs, etc.);
• Establish a presumption of authenticity for certain digital documents;
• Frame the signature methods accepted for validly concluding a contract;
• Ease or strengthen the statutory rules of evidence, within the limits authorised by law.

Where should an evidence agreement be inserted?

It may appear in various types of contractual documents:

• The general terms and conditions of sale (GTC) or general terms of use (GTU) of an e-commerce site or a SaaS platform;
• A framework agreement governing commercial relations (for example between a distributor and its suppliers);
• A service provision contract concluded between professionals.

Important point of attention: an evidence agreement cannot be contrary to public policy nor run counter to consumer protection rules. In contracts concluded with individuals (B2C), its scope is more limited than in relations between professionals (B2B).

What legal risks arise in the absence of a suitable evidence agreement?

The absence or poor drafting of an evidence agreement exposes a business to several concrete risks.

Risk 1: the inability to prove the existence of the contract. Without an evidence agreement, a judge may dismiss an email or a mere PDF as insufficient evidence to demonstrate that a contract was indeed concluded for an amount exceeding 1,500 euros.

Risk 2: the challenge to the validity of the signature. If your client disputes having signed a document or having consented to general terms and conditions, you will have to prove the authenticity of the electronic signature technically. Without an audit trail or proof of consent, this can prove very difficult.

Risk 3: the risk that contractual clauses are unenforceable. Important clauses (limitation of liability, penalty clause, non-compete clause, payment term) may be deemed unenforceable if their acceptance is not reliably proven.

Risk 4: a weakened position in the event of litigation. In the event of a dispute, a business that cannot prove its contracts before a court finds itself in an extremely unfavourable position, regardless of the reality of its commercial commitments.

Concrete example: A SaaS software publisher markets its solutions through a fully digital journey. Clients tick a box "I accept the GTU" when registering. Without a timestamped audit trail and without an explicit evidence agreement in its GTU, the publisher cannot irrefutably demonstrate that a given client did accept a given version of the terms on a given date. In the event of a dispute over the terms of use or termination, its position is weakened.

How to draft an effective evidence agreement?

A robust evidence agreement must address several essential points.

What elements must it necessarily contain?

A well-drafted evidence agreement must specify:

1. The definition of the media accepted as evidence. It must explicitly list the recognised formats: emails, electronically signed PDF documents, platform records, messages sent via a secure interface, timestamped access logs, etc.

2. The evidential value granted to these media. For example: "The parties agree that any electronic message sent from the email address registered to the client's account constitutes acceptance of the commercial proposal."

3. The recognised signature process. It is useful to specify whether the parties accept the simple, advanced or qualified signature, and under what conditions.

4. The retention arrangements. The agreement must indicate how and for how long the documents will be archived, and by whom (the business itself or a third-party archiver).

5. The presumption of attribution of acts. It may provide that any act carried out from a client area secured by login and password is deemed to have been carried out by the account holder.

What limits apply to the evidence agreement?

Article 1356 of the Civil Code specifies that evidence agreements between professionals are valid, but they cannot "contradict irrebuttable legal presumptions, alter the nature of authentic instruments or modify the rules governing the status and capacity of persons". In contracts with consumers, clauses that would create a significant imbalance to the detriment of the consumer may be deemed unwritten pursuant to Article L. 212-1 of the Consumer Code.

What rules apply to electronic contracts concluded online?

Beyond signature and evidence, contracts concluded online are subject to specific rules arising from Law no. 2004-575 of 21 June 2004 on confidence in the digital economy (LCEN), codified in Articles 1125 to 1127-6 of the Civil Code.

These rules notably impose:

• The pre-contractual information obligation: before the conclusion of the contract, the professional must make the contractual terms available and allow them to be retained and reproduced.
• The "double click" process: for contracts concluded online with consumers or with non-natural-person professionals, the law imposes a two-step validation procedure allowing the buyer to check their order and correct it before definitively confirming it (Article 1127-2 of the Civil Code).
• The acknowledgement of receipt: the author of the offer must acknowledge receipt of the acceptance without undue delay, by electronic means.
• The retention of the contractual writing: for contracts of an amount exceeding 120 euros, the professional must retain the contractual writing for ten years from the conclusion of the contract, and make it available to the contracting party on request.

What solution to secure your electronic signatures?

Interactive tool

Which level of electronic signature for your contract?

Selection criteria to take into account:

In which situations is the electronic signature not sufficient?

Certain legal acts remain excluded from the scope of the electronic signature or require additional formalities that the signature alone is not enough to satisfy.

Solemn acts requiring an authentic notarial deed cannot be concluded by simple electronic signature. This is notably the case for real estate sale deeds, gifts, marriage contracts, the articles of association of certain companies or mortgages.

Private deeds subject to specific formalities (a handwritten statement required by law, such as the guarantee in certain cases before the law of 23 March 2019) may also pose difficulties in electronic format, even if case law has evolved on this point.

Employment law acts present certain particularities. For example, the approved mutually agreed termination or the settlement require particular attention as to the method of signature, even if dematerialisation is progressing in this area.

Point of attention: where there is doubt as to the form required by law for a particular act, it is essential to consult a specialised lawyer before deploying an electronic signature solution.

Electronic archiving and retention of evidence: what obligations?

The electronic signature is not sufficient if the signed documents are not retained under conditions guaranteeing their integrity over time. This is the question of evidential archiving.

The Civil Code requires that the electronic writing be "established and retained under conditions of a nature to guarantee its integrity" (Article 1366). This requirement implies:

• The use of a reliable archiving system, ideally certified NF Z 42-013 or NF Z 42-020 for electronic archiving systems.
• The timestamping of documents, preferably via a qualified timestamping service within the meaning of the eIDAS Regulation.
• The long-term retention of signed documents and their metadata (audit trail, signature certificates, signatories' identity data).
• The traceability of changes: any archived document must be protected against any subsequent alteration.

For the personal data processed in this context (names, email addresses, signatories' identity data), the obligations arising from the GDPR apply fully: information of the data subjects, retention period limited to the time necessary, security of processing, and management of access rights.

How does the law firm Mirabile Avocat support you in securing your digital contracts?

Establishing a robust legal strategy around the electronic signature and the evidence agreement is not a mere technical formality. It involves a cross-analysis of your contractual needs, the legal framework applicable to your sector of activity, and the technical solutions available on the market.

Mirabile Avocat acts at every stage of this process:

Audit of your existing contractual practices. The firm analyses your method of concluding contracts, the media used, the signature processes in place and any shortcomings in terms of evidence. This audit is the essential starting point for identifying the concrete risks to which you are exposed.

Drafting or revision of your GTC, GTU and standard contracts. The firm drafts general terms and conditions incorporating an evidence agreement tailored to your activity, and ensures that they are enforceable against your contracting parties. It also ensures their compliance with consumer protection rules if you sell to individuals.

Advice in the choice of your electronic signature solution. The firm helps you identify the level of signature suited to each type of contract and select a technical solution compliant with the requirements of the eIDAS Regulation and the GDPR.

Securing your contracts with specific stakes. For your distribution contracts, your framework agreements with commercial partners, your software licence contracts or your SaaS contracts, the firm proposes robust contractual clauses including fine-grained management of evidence, the parties' rights and dispute resolution mechanisms.

Support in the event of litigation. If a dispute arises and the authenticity of a contract or the reality of a consent is challenged, the firm defends your interests by exploiting the available evidence (audit trails, connection data, signature certificates) and by deploying the right legal arguments before the competent courts.

Key takeaways: the essential points for a business leader

The legal securing of your digital contracts rests on four complementary pillars.

First, the choice of the right level of electronic signature. Not all contracts require a qualified signature, but none should be concluded without serious traceability. Identify your high-stakes contracts and adapt the level of signature accordingly.

Second, the drafting of a suitable evidence agreement. Incorporated into your GTC, GTU or framework contracts, it sets the rules of the game in the event of a challenge and strengthens your position in the event of a dispute.

Third, the establishment of reliable evidential archiving. Electronically signing a contract is pointless if you are not able to retrieve the original document, the audit trail and the signatory's identity data five years later.

Fourth, the GDPR compliance of your signature journey. The data collected during signature (identity, IP address, timestamp, contact details) are personal data subject to the European regulation. Their processing must be documented and framed.

These four pillars form a coherent framework that the law firm Mirabile Avocat helps you build and maintain, taking into account the specificities of your sector and your commercial practices.

This article is written for information and educational purposes. It does not constitute personalised legal advice. For any question specific to your situation, we invite you to contact the law firm Mirabile Avocat in order to obtain support tailored to your needs.