The legal value of a scanned signature is a complex subject. And a recent decision of the Court of Cassation will not help the matter by appearing to contradict a previous decision of this same court.
Does the practice of “scanned signatures” have real legal value? This is a question that comes up often and the answer to which can have more or less serious consequences for businesses and individuals alike. Especially since the case law on the subject does not seem particularly stable, as proven by a recent decision of the Court of Cassation, the highest instance of the judiciary in France, which seems to contradict a previous decision of this same court.
As a reminder, scanned signature refers to the act of affixing a digitized image of a handwritten signature to a document, such as a contract, an invoice or a letter. The practice has become very widespread because it is particularly convenient, quick and inexpensive: to “sign” a document in this way, simply take a photo of your signature or scan it with a scanner, then insert it into the document. desired via a PDF reader or word processor. If this method of signature is perfectly legal, it does have a weak, although not zero, legal value.
Scanned signature: apparently contradictory court decisions
Indeed, a scanned signature being easily falsifiable, it does not make it possible to identify the signatory with certainty nor to guarantee the integrity of the signed document, that is to say to ensure that it has not been modified between the time it was signed and the time it was consulted. As a result, the scanned signature has low probative force and, in the event of a dispute, constitutes only a “beginning of proof in writing”, which must be cross-referenced with other elements and which does not in itself constitute a proof of the consent of the signatory to the obligations arising from the signed document.
It is this interpretation that emerges from decision no. 22-16.487 of March 13, 2024 of the Court of Cassation, which invalidated a contract between two companies, on the grounds that it was only covered by scanned signatures. However, a little less than two years ago, the same Court of Cassation, in its decision no. 21-19.841 of December 14, 2022, had validated the rejection of the complaint of an employee who contested the validity of his employment contract on the grounds… that it bore the scanned signature of his employer. Seasoned legal professionals will certainly not see any contradiction in this, but for us mere mortals, the situation can be perplexing.
Scanned signature: valid as long as it is not contested by its author
In the oldest case, an employee had signed a fixed-term employment contract which was terminated very quickly by his employer (the next day). The employee then took the employer to court by requesting the reclassification of the CDD into a CDI, on the grounds that the initial contract only had the employer’s scanned signatory and that the latter did not have legal value. Indeed, in labor law, a fixed-term contract not signed by one of the parties is considered void and reclassified as an indefinite-term contract. In this specific case, however, the employee was dismissed at first instance then on appeal, and the Court of Cassation validated these two judgments on the grounds “that it was not disputed that the signature in question was that of the manager of the company and made it perfectly possible to identify its author, who was authorized to sign an employment contract” and that in conclusion “the digitized handwritten signature of the company manager did not constitute the absence of a signature”.
In the second dispute, a company obtained crowdfunding from another, but announced to it a few months later that it was unable to repay the loan. In addition to the initial financing contract, a promise to transfer the shares of the borrowing company, in the event of its default, had been concluded for the benefit of the financier, who therefore requested the execution of this contract. But the borrower contested the validity of this promise of assignment, on the grounds that it only contained scanned signatures and that he did not recognize his own. The courts of first instance and appeal ruled in favor of the borrower and the Court of Cassation validated their judgments, on the grounds that “the process of scanning signatures, if valid, cannot be assimilated to that used for electronic signatures which benefit from a presumption of reliability”. Thus, the degree of reliability of a scanned signature being low, additional evidence must be provided when it is contested, and in the present case the various courts have ruled that the elements provided “are insufficient to provide proof that [les signataires] would have personally consented to the affixing of their scanned signature on the deed of transfer or given instructions to this effect”.
Scanned signature: much less secure than an electronic signature
It is therefore the recognition of the scanned signature by its author which constitutes the crux of the problem in these two cases and which explains the difference between the judgments rendered by the different courts. The scanned signature is indeed a valid practice which allows one to express one’s consent to the obligations resulting from a legal act and it can serve as evidence in a dispute, as long as none of the parties deny being the author of its signature. signature. Otherwise, as the scanned signature does not make it possible to identify with certainty the person responsible for affixing the signature to the document, it cannot on its own constitute irrefutable proof that the act has been been signed regularly. As practical as the scanned signature is, it is therefore better to reserve it for internal acts and documents which present little risk of litigation or litigation, as rightly indicated the thematic sheet of the France Num site dedicated to electronic signatures.
On this very detailed page, it is recalled that the scanned signature is assimilated to a simple, “level 1” electronic signature, i.e. the lowest level of reliability and probative force: “Its legal value is limited, because it does not guarantee the integrity of the signed data nor the identity of the signatory, etc. It may, however, constitute the beginning of proof in writing. Its purpose is to simplify internal processes where signature is essential (authorizations, acknowledgments of receipt, orders, contracts, etc.).” For more sensitive acts and documents, it is recommended to turn to the higher levels of electronic signature, namely advanced (level 2), advanced based on a qualified electronic signature certificate (level 3) and qualified (level 4).
Unlike the scanned signature, these levels of electronic signatures are based on technical and cryptographic processes, which make it possible to identify the signatory with certainty and guarantee the integrity of the signed document. These electronic signature methods, however, are more cumbersome to set up, and require the use of a third party whose services are chargeable depending on the level of reliability sought. To determine the right level of electronic signature to use, it is therefore necessary to carefully study the degree of sensitivity of the documents to be signed and the associated legal risks in the event of a dispute. If legal acts requiring such a level of protection are quite rare in the life of an individual, they are however common in the activity of any company, and have at least one advanced electronic signature (level 2) proves essential.