The SARS-CoV-2 coronavirus pandemic and the associated numerous restrictions and strictures have significantly hampered business operations. One of the impediments was the inability to meet with contractors and sign trade agreements. Bearing in mind that some countries (e.g. South Korea) are already experiencing the 2nd wave of the pandemic, it is unfortunately to be expected that also in Poland there may be an increase in the number of cases of Covid-19 in the indefinite future. This, in turn, may lead to the reintroduction of restrictions, having a disastrous impact on businesses in many industries.

Therefore, it is worth knowing whether remote contracting is possible and what conditions must be met for such a contract to be effective and have certain legal effects.

At the outset, it should be emphasized that the possibility and effectiveness of remote contracting should be considered separately for each contract. This is because the important issue is not only the subject of the contract itself, its content or type, but above all the need to comply with the legal form prescribed by law.

Principle of freedom of contract

One of the basic rules of contracting is the so-called principle of freedom of contract, set forth in Article 353(1) of the Civil Code. According to it, parties entering into a contract may arrange the legal relationship as they see fit, as long as its content or purpose does not oppose the properties (nature) of the relationship, the law or the principles of social intercourse. This means that, in general, the parties may conclude a contract in any form - including orally or electronically - provided, however, that the applicable regulations do not provide otherwise, i.e. do not prescribe a specific form of legal action. As a side note, however, it is worth noting that, for evidentiary reasons, it is always advisable to conclude a contract in writing, because in case of any doubt, any agreement between the parties will be able to be proven in court without much difficulty.

As mentioned above - the applicable regulations may stipulate the necessity of preserving a certain (so-called special) form of performing a legal action (i.e., concluding a contract). Its failure to do so may be associated with various legal consequences (e.g., invalidity of the legal action).

Special forms of performance of a legal act (conclusion of a contract)

At the moment, the provisions of the Civil Code indicate 6 specific forms of performing a legal act, ie:

• written form,
• written form with a definite date,
• form with notarized signatures,
• form of a notarial deed,
• electronic form,
• documentary form.

Special provisions of the Civil Code indicate in which cases and matters for the validity of a particular type of contract or, for example, to produce certain effects provided for in the contract, it is necessary to comply with the aforementioned special form. It should be borne in mind that a similar requirement may also be agreed upon by the parties entering into a given contract.

Form of notarial deed

The conclusion of a contract in the form of a notarial deed requires the presence of a notary public. Therefore, it is not possible to conclude a remote contract for which the regulations provide for the aforementioned special form.

Form with notarized signatures

Also for the conclusion of a contract with a notarized signature, the presence of a notary is required. For this reason, also in this case, the remote conclusion of a contract for which the regulations provide for the aforementioned special form is impossible.

Written form with a definite date

The conclusion of a contract with a definite date requires, instead of a notary, the presence of an appropriate official who will confirm the fact that a certain legal act has been performed. Again, due to the many restrictions imposed by the authorities, it may not be possible to meet with the official.

Written form

The written form requires each party's handwritten signature on the contract. This means that "signing" the contract with a facsimile (i.e., using a stamp with a specimen signature) or a scan of the signature will be ineffective under current regulations. By the way, it is worth mentioning that the persons signing the agreement do not have to sign the same copy - it is enough that each party signs the copy of the agreement in his possession. However, it should be borne in mind that in such a case the issue of evidence can be highly problematic - if the parties do not exchange signed copies of the contract, it will be impossible to prove that a specific contract was actually concluded by the parties. It can also be problematic to prove specific provisions or regulations that the parties agreed to when entering into the contract. For this reason, you should always strive to have the other party hand over a copy of the contract that they signed.

Electronic form

Contrary to popular belief, the electronic form of entering into a contract is not an email exchange or an email confirmation of the contents of a contract held or received from a counterparty.

Concluding a contract in electronic form means submitting a declaration of intent in electronic form and affixing it with a so-called qualified electronic signature. In practice, two solutions are most often used - the first is to sign the document (file) with a qualified signature and save (convert) the document (file) in another format, appropriate for the document (file) signed with an electronic signature (e.g., .xades format). The second solution is to place the signature, as it were, "inside the document (file)" in the place where one usually places a handwritten signature - this solution usually applies to files in .pdf (portable document format).

Signing using a qualified electronic signature is equivalent to signing a document by hand (i.e., ordinary written form). However, it is important to note that there are many types of electronic signatures offered on the market - both by domestic and foreign entities. For a qualified electronic signature to have legal effects equivalent to a handwritten signature, the following prerequisites must be met:

- The signature must be a set of electronic data that is attached or logically linked to other data in electronic form and that will be used by the signer as his signature,

- The signature must be made using data that can only be used by the signer,

- The signature must be linked to other data in such a way that any subsequent change or tampering is visible,

- The signature must make it possible to identify the signer and be attributed to him,

- The signature is made using a special electronic signature device and is based on a so-called qualified electronic signature certificate.

Electronic signatures that do not meet the aforementioned prerequisites cannot therefore be considered equivalent in effect to handwritten signatures.

Documentary form

By documentary form is meant the submission of a declaration of intent in the form of a document, in a manner that makes it possible to determine the person making the declaration. At the same time, a document can be any information carrier that allows one to get acquainted with its content (among others, documents bearing a non-handwritten signature - facsimiles, documents signed with a Trusted Profile - ePUAP, e-mails, etc.).

Thus, the documentary form will have all confirmations or agreements concluded via e-mail, in which the parties establish, confirm or agree to certain contractual terms.

Summary - when can a contract be signed remotely?

In summary - if to conclude a contract:

• a specific form is not required (e.g., a sales contract) - such a contract can be concluded both with the use of a qualified electronic signature and by other remote means (e.g., exchange of e-mail correspondence by the parties).
• a special form in writing is required (e.g., an employment contract) - such a contract can only be concluded using a qualified electronic signature.
• a special form in the form of a notarial deed, notarized signatures or a definite date is required (e.g., the transfer of ownership of real estate to another person or entity) - such an agreement can be concluded neither with the use of a qualified electronic signature nor by any other remote means (e.g., exchange of e-mail correspondence).