The health crisis that is currently being experienced worldwide due to the spread of the COVID-19 virus has affected our conduct and behavior. Commercial and civil acts are no strangers to this reality and have undergone changes both in the way they are embodied and how they are executed. The predominant role of technology in easing business operation, communication between parties and confirmation of agreements and obligations, including filing and notifying rulings, has led us to wonder about the validity of an e-mail or an electronic copy of an agreement signed by the parties either in simple digital form or signed in physical form and sent in an electronic format, be that as a photograph or in one of the known pdf (portable document format) or png (portable network graphics) formats.
This question arises from the inherent fragility of this method of proof because an electronic document, considering it as the manifestation of thought or its computer consequence included in the magnetic or optical support, in a digital way; like a photocopy, it can be the result of an alteration, modification or imitation of a reality. This is so because anyone with minimal knowledge of technology can manipulate, distort, or disrupt reality by using an authentic or real document that was duly created by a person or legal entity, and render it to present a false situation, as if it were an irrefutable reality acknowledged by the parties. [1]
Given this weakness, we set out to analyze the possibility of presenting a simple electronic document in litigation and what value would this document have as evidence to demonstrate the existence, enforceability, and validity of a legal act. To this end, we understand it necessary to analyze this question based on the type of act one intends to validate, since the legally established procedure varies between a commercial transaction and a civil legal act.
- The electronic document as a means of proof in commercial matters
By way of introduction, it is important to specify what is classed as commercial transaction in order to distinguish it from a purely civil act.
Our Commercial Code has not established a definition per se of what constitutes a commercial transaction but has detailed a list of acts that are reputed as commercial transactions, based on the commercial nature of their execution. Therefore, below, we present articles 632 and 633 of the Commercial Code which establish the various activities or actions that qualify as a commercial transaction, namely:
“Art. 632.- The law considers commercial transactions: any purchase of goods and merchandise for resale, either in kind, or after having processed them, and put to work, or even to simply rent them; any undertaking of manufacture, commission, land or water transport; any supply company, agencies, business offices, auction sales establishments, public entertainment; all exchange, banking and brokerage transactions; all operations by public banks; all obligations between dealers, traders and bankers; the bills of exchange or remittances of money between all people made in the same place as the original agreement is made.”
“Article 633.- The law similarly considers commercial transactions: any construction company and all purchases, sales and resales of ships for internal and external navigation; all maritime expeditions; any purchase or sale of gear, equipment and supplies for vessels; any bottomry charter, borrowing or lending; all insurance and other contracts concerning maritime trade; all agreements and conventions for crew wages and salaries; all the commitments of seafarers, for the services of merchant ships.”
Therefore, the rules established by our regulations for presenting evidence in Commercial Law are applicable in the case of any commercial transaction listed by the Commercial Code.
It is commonly known that the principle of freedom of evidence applies in matters of Commercial Law. It allows the existence of a commercial transaction and its execution to be proven by any means possible: documentary, testimonial, expert, technological, recordings (auditory or visual), or any other means that allows the Judge to form his conviction regarding the facts and legal acts that are involved in the commercial activity that is presented in the litigation and submitted to him, so that it can be resolved in accordance with the law.
This freedom of proof in commercial matters is established in article 109 of the Commercial Code of the Dominican Republic, which states the following:
“Art. 109.- Purchases and sales are verified: by public documents; by private deeds; by the detailed note or by the adjustment of an exchange agent or broker, duly signed by the parties; by an accepted invoice; by correspondence; by the parties´ books; by the evidence of witnesses, in the event that the court believes it is its duty to admit it. “
This principle has been strengthened by the caselaw interpretation our Supreme Court of Justice has given to article 109 of the Commercial Code because, in its transcendental ruling of November 1943 (Judicial Bulletin No. 400, page 54) it specified that “… any kind of evidence is enforceable against a trader in disputes brought against him regarding an agreement made by him for the purposes of his trade, ‘and are not affected by the fact that the appointed court expresses that it is exercising its civil powers, because the system of evidence depends on the fact that must be proven and not on the powers in use ‘…” , a criterion that has been maintained and reiterated by this high court in recognizing the principle of freedom of proof that governs commercial matters in several rulings, including its ruling number 546 issued by the Civil and Commercial Chamber of the Supreme Court of Justice, acting as Court of Appeal, dated June 17, 2015, Judicial Bulletin No. 1255, June 2015.[2]
In the case of the electronic document, its admissibility as a means of proof in commercial matters is clearly acknowledged in our regulations through Law No. 126-02 on Electronic Commerce, Documents and Digital Signatures, which establishes the following in article 9:
“Article 9.- Admissibility and probative force of digital documents and data messages. Digital documents and data messages shall be admissible as evidence and shall have the same probative force granted to private deeds in the Civil Code and in the Civil Procedure Code.
Paragraph. – In administrative or judicial proceedings, no type of information in the form of a digital document or data message shall be denied effectiveness, validity or mandatory probative force solely because it is a digital document or a data message or because it has not been submitted in its digital form.”
Therefore, there is no doubt that, if required, commercial transactions created in electronic format may be validly presented as evidence before the courts in the event of a dispute, especially if this means of proof is reinforced by providing documents, recordings, witnesses, or any other way of demonstrating not only the creation of a commercial transaction but also the execution of the facts that result from it, and the consequences entailed. Such is the example of submitting to the judge recordings obtained from security cameras or testimonies presented by witnesses present at the time when a person approves the electronic document that gave rise to the commercial transaction by placing his signature in digital format.
Regardless, we consider it pertinent to make the distinction between a simple digital signature placed on an electronic document to what is legally recognized as a digital signature, which is established and regulated by the aforementioned Law No. 126-02 on Electronic Commerce, Documents and Digital Signatures.
According to this law, the term digital signature is defined as: “a numerical value that adheres to a data message using a known mathematical procedure linked to the sender´s key and the text of the message that allows to determine that this value has been obtained exclusively with the sender´s key and the text of the message, and that the initial message has not been modified after the transmission.”[3]
Therefore, the law recognizes as valid and secure digital signatures only ones that “can be verified in accordance with a security procedure system that complies with the guidelines outlined by this law and its regulations.”[4]
Consequently, in accordance with the law, a digital signature will have the same legal force and validity as a privately signed document if it complies with or incorporates the attributes indicated below: [5]
- “It is unique to the person who uses it.
- It can be verified.
- It is exclusively controlled by the person using it.
- It is linked to the information, digital document or message to which it is associated, in such a way that, if these are changed, the digital signature is invalidated; and
- It is in accordance with the regulations adopted by the Executive Branch.”
The procedure for the issuance or placement of a digital signature legally recognized as valid and with probative force consists mainly of it being issued with a digital signature certificate endorsed by a Certification Entity authorized by the Dominican Institute of Telecommunications (INDOTEL), which is responsible for guaranteeing the authenticity of the digitally stamped signature and, in addition, for granting assurance to the subscriber of the signature that it may not be altered or manipulated by third parties without the authorization of its owner.
That is why a document signed in electronic format or a photo of the signature placed in the corresponding area cannot be qualified as a document containing a digital signature but as an electronic document that reflects a copy of the client’s signature. Therefore, in commercial matters, an electronic document has the probative force of a privately signed act, in accordance with the regulations evaluated above.
Now that we have seen recognized the probative value of an electronic document in commercial matters, we must now analyze the validity and probative force of a document that was digitally signed in civil matters, because, as indicated above, it is considered as a copy of the original signature. This is why we will now study the probative value conferred on photocopies in this branch of law within our legal system.
- The probative value of the electronic document in civil matters
In an introductory way, it should be noted that, in civil matters “… whether submitting the sources of evidence considered useful and suitable in court or when the moment comes for the judge to assess the fruit of the process at the end of the day, legal evidence is not a generally applied parameter but rather focuses exclusively on legal acts, and not on facts that are assessed with complete freedom and for which there is the widest evidentiary flexibility …”[6]
Therefore, it is clearly known that, when demonstrating the existence, validity and enforceability of a legal act (unlike a legal fact), in civil matters this is done using a method considered fundamental, superior and perfect: literal or documentary evidence, a statement that can easily be verified with the content of the Civil Code in its articles from 1315 to 1369, when dealing with the proof of obligations and payment.
Specifically, Article 1341 of our Civil Code is the one that most clearly shows the preponderance of documentary evidence over any other means of evidence, in civil matters, by establishing the following:
“A record must be drawn up before a notary or as a private deed, of all things whose sum or value exceeds thirty pesos, even for voluntary deposits; and no evidence shall be received from witnesses against or outside the contents of the acts or on what is alleged to have been said before, in, or after them, even if it is a sum or value less than thirty pesos. All this, without prejudice to what is prescribed in the laws relating to trade.” [emphasis added]
As we can see, this article recognizes the distinction of the system of admission of evidence that applies in the field of Commercial Law and the importance given to documentary evidence in the field of Civil Law.
However, the same law recognizes there may be difficulties in obtaining documentary evidence on a legal act that has been established through legal facts, especially if these have been carried out by the adversary. That is why the principle of written proof is taken into account, whereby any written act is admitted as a means of proof, regardless of whether it is a notarial act or a private deed. This is recognized in Article 1347 of the same Code by expressing the following:
“ The exception to the above rules is when the principle of written proof comes into play. Any written act that emanates from the contested party, or from whoever represents him, that makes the alleged fact plausible is called in this way.”
Likewise, the law recognizes exceptions to the requirement of literal evidence in cases where one of the parties has difficulty showing the creation of a legal act by an act that he himself carried out. The Civil Code lists the cases in which this exception is recognized in its article 1348 which establishes the following:
“Also excused, provided it has not been possible for the creditor to obtain literal proof of the obligation that has been entered into in respect of him. This second exception applies to: 1st. obligations arising from quasi-contracts and offences or quasi-crimes; 2nd. the necessary deposits made in case of fire, ruin, tumult or shipwreck, and to those made by travelers when staying in an inn, all according to the quality of the people and the circumstances of the fact; 3rd. the contracted obligations in case of unforeseen accidents, where no written acts could be drawn up; 4th. if the creditor has lost the deed that served as literal evidence, as a result of a fortuitous, unforeseen case resulting from force majeure.”
Therefore, our Supreme Court of Justice has also jurisprudentially admitted the criterion that a legal act can be demonstrated beyond the simple presentation of a written document. This position was clearly established through the controversial ruling number 988 (file number 2010-4797) that this distinguished court issued on the 10th of September 2014, through its Civil and Commercial Chamber, which states the following:
“Considering that, secondly, it should be noted that the rule established in the aforementioned article 1341 of the Civil Code is part of the legal tariff system instituted in our law with the adoption of the Napoleonic Civil Code, which consists, mainly, in the determination in abstracto by the legislator of the admissibility, production and effectiveness of the means of evidence in justice. Whereas this system was established at a time when the law was governed by the rule of law and sought to achieve uniformity, certainty and economy in the administration of justice, based on a distrust of the work of judges. Whereas, at present, our law and our administration of justice have evolved, highlighting the transformation of the old Legal Rule of Law into the current Constitutional Rule of Law. Whereas, as a result of this transformation, the Dominican legal system is currently based on the defence of certain principles and values that transcend that of the rule of law, such as the principle of justice. Whereas the certainty achieved by the exhaustive application of a system of evidence of the tariff violates the principle of justice in that it gives precedence to a formal truth to the detriment of the reality of the facts; thus, both the rights of defence of the parties and the effective judicial protection are also weakened since the possibility for the parties to exercise their rights in cases where there is no evidentiary means specifically established by law is restricted in a generic way and, in addition, the judge is restricted in his work to clarify the facts of the case from other means of evidence. without this being justified in a specific violation of due process; whereas, on the basis of those shortcomings, the most widely recognised procedural doctrine has advocated the replacement of that system by that system of free conviction or sound criticism, which enables the parties to provide all the relevant evidence and the judge to be free to assess them on condition that their admission and assessment are set out or reasoned reasons, position shared by this Civil and Commercial Chamber of the Supreme Court of Justice by virtue of the above.” [emphasis added].
Given this position accepted jurisprudentially and incorporated into our legal system, through the frequent exercise before the courts of introducing evidence other than written evidence in civil matters, the value and contribution presented by an electronic document in a litigation cannot be underestimated, recognizing its weaknesses and consideration as imperfect evidence, trusting that the judge will make a correct assessment of the facts to create his conviction about the existence or not of the legal act that is intended to be proved.
Therefore, compared to an electronic document that was prepared by inserting a simple copy of the signature of its author or through the expression of his consent by a technological method, capable of being verified and confirmed, the electronic documents can be entered into the judicial process using the same qualifier that photocopies would receive, which have also been recognized jurisprudentially as a means of evidence.
This criterion of admitting photocopies has been confirmed and maintained by our Supreme Court of Justice through several rulings, among which we can mention ruling number 33, of June 7, 2013, issued by the Civil and Commercial Chamber of this high court (B.J. 1231), which states the following in this regard:[7]
“… Whereas, this Court of Appeal has judged, that although photocopies alone do not constitute suitable evidence, this does not prevent the trial court judges from assessing the content of the photocopies and, that examination together with other legal issues present in the case before them, they deduce the relevant consequences; whereas, moreover, it has been held by this court that the fact that the documents deposited are mere photocopies is not sufficient to justify their exclusion from the debates, if they are documents essential to putting the court in a position to decide the merits of the defence…” [emphasis added]
Therefore, photocopies are admitted as a means of evidence, especially in cases where the contested party does not object and, even more so, when dealing with a digital document to which the parties involved in the litigation have granted the evidentiary power of a civil legal act in question, through an agreement executed a priori of the unfolding of the facts that caused the conflict between them, as is the case of the different forms that are currently used to confirm the identification of the signatory party and their granting consent to the obligations undertaken, which are commonly called “on boarding” , which range from a visual recording to providing confidential information that only the contracting individual has access to.
Therefore, it has been doctrinally recognized in our country that “… the evidentiary agreement is admissible only to the extent that it seeks to complete or qualify the investigation, without compromising the exercise of the defence or the possibilities for a court to display the sovereign powers which, according to our case-law, allow it to act ex officio in certain cases so as to order, for example, the deposition of a witness, a visit to places or the personal appearance of the parties”, [8]as well as verifying deeds and confirming the materialization of the facts related to the case in question by other means of evidence.
This defense that can be exercised by a party against a written means of evidence presented in a litigation, such as a simple document or digital signature, consists of an objection to recognizing the validity by demonstrating the degree of falsity or the elements that prove its inaccuracy with reality.
In the case of a normal written document, the counterparty may avail of the procedures enshrined in the Civil Procedure Code to debate or question the credibility of what is contemplated in a document, namely:
- Handwriting Verification:
The verification of handwriting can arise incidentally and is considered as the legal examination of a private deed, in order to verify if it was really written or signed by the person to whom it is attributed. Because the contents of a private deed can only be proven if the contested party acknowledges it. Verification of the deed assumes that the act is denied by the contested party or unknown by the signatory´s heirs or successors.
This procedure is laid down in Articles 193 to 213 of the Civil Procedure Code and may be initiated by means of a main suit or by incidental procedure. The court is not required to order deed verification for the sole reason that the deed is disputed or when the measure seems futile or inopportune.
- Misrepresentation:
On the other hand, false registration is the legal examination of an authentic act (notarial) in order to verify if an alteration of the truth that verifies said writing has really been made since the law considers the information contained in these acts as true, so, in order to refute what is expressed in them it must be shown that the truth contained in that act has been altered.
The procedure for this is established in the Code of Civil Procedure in its articles from 214 to 250 and can be initiated by means of a main claim or by incidental procedure. However, the Justice of the Peace cannot hear a false registration, so when contested incidentally, he must refer it to the civil judge to decide.
However, in the case of an electronic document signed in digital format, only by qualifying this type of document as a photocopy could it be considered as a false registration, that, therefore, can be presented as a simple and imperfect means of proof of its content in civil matters, that is, allowing evidence to the contrary. While, in commercial matters, as we analyzed earlier, its evidentiary force can be strengthened if the person who introduces it to the process presents other means of proof that corroborate its signature and the validity of its content.
In conclusion, the unusual circumstances that the country is experiencing, where what we understood as an exaggerated and prolonged State of Emergency was maintained and given the need to create an effective balance between social isolation and economic productivity, these cannot be used as “excuses” to ignore the requirements that must be respected when materializing a legal act.
However, technology has given us the tools that allow us to comply with several of these requirements by facilitating the expression of the will of the parties through novel methods that can be verified and confirmed by legal facts that are manifested through various means of evidence.
That is why the advantage that gives us the power to prepare and sign a document in an electronic or digital format goes beyond the speed in the concretizing an agreement and the absence of the need for the parties to be present in the same space, since this type of document is validly accepted as a means of proof in our legal system, especially if it is not refuted by the opposing party and if its content is evidenced through the legal facts that entail its execution, which can be demonstrated in a judicial process by introducing other elements to the debate, such as security camera recordings and third parties participation, since these means can help strengthen the probative value of the electronic document and that has been legally recognized in commercial matters, in the face of the principle of freedom of evidence that is recognized in this area of law.
This criterion is currently reinforced by the arguments established by our Supreme Court of Justice, when assessing and considering the text messages exchanged by the electronic application called WhatsApp, through the ruling issued by its Third Chamber, on October thirty (30) of two thousand and nineteen (2019), specifically in its numeral 15 (page 10) which states the following:
“… 15. That this Third Chamber of the Supreme Court of Justice considers that it is necessary to indicate that, although it is true, given the advance of computer technology that has created new methods in the provision and preservation of information, the legislator, through Law No. 120-02 of 4 September 2002, recognizes the evidentiary value of digital documents and data messages, which are admitted as means of proof, with the same probative force as private deed, it is also true that digital evidence constitutes a complex test that, in the face of questioning the credibility of the content of the information contained in the digital piece from which rights or obligations could be derived, as in the case in question, it places the onus on the party proposing such evidence to put the magistrates in a position to verify the veracity of the content of the electronic document provided, being free to resort to the widest freedom of evidence, including the formal request for electronic expertise or any other verification that allows to verify, among other aspects, that the document has been preserved in an integral way, that it has not been adulterated and identify the ownership of the receiver and the sender of the electronic document …” [underscore and bold type added]
However, this conviction and acceptance does not detract from the evidentiary force of a private document, especially if the signatures recorded have been duly certified by a notary public, much less the undeniable power maintained by authentic acts drafted by a notary public, to whom the law has granted the power to issue acts with public faith and whose content can only be refuted through the process of false registration indicated above; since this electronic document requires the cooperation of other means of evidence to support its arguments before a judge, while the document whose signatures have been stamped in the presence of witnesses or a notary does not require this support, but to deny its content the means of proof that prove otherwise must be presented.
Bibliography:
- ALARCÓN, Édynson. “The Supreme, The Evidence and Article 1341 of the Civil Code”: Judicial Gazette, year 19, number 349, February 2018.
- ALARCÓN, Édynson. “The Conventions or Private Covenants on Evidence”: Judicial Gazette, year 23, number 387, July 2019.
- Civil Code of the Dominican Republic, promulgated through Decree No. 2213, dated April 17, 1884.
- Commercial Code of the Dominican Republic, promulgated on April 16, 1884.
- Code of Civil Procedure of the Dominican Republic, promulgated through Decree No. 2213, dated April 17, 1884.
- Decree No. 335-03 approving the Implementing Regulations of Law No. 126-02 on Electronic Commerce, Documents and Digital Signatures, issued on 8 April 2003.
- Law No. 126-02 on Electronic Commerce, Documents and Digital Signatures, promulgated on 4 September 2002.
- Sentence number 988, file number 2010-4797, dated September 10, 2014, issued by the Civil and Commercial Chamber of the Supreme Court of Justice.
- Ruling number 675 (exp. No. 2012-5903), dated August 28, 2019, issued by the First Chamber of the Supreme Court of Justice.
- Ruling number 24 (Exp. No. 2012-535), dated February 28, 2015, issued by the Civil and Commercial Chamber of the Supreme Court of Justice.
- Ruling number 398 (Exp. No. 2008-4053), dated March 28, 2018, issued by the Commercial and Civil Chamber of the Supreme Court of Justice.
- Sentence number 557-2019 (Exp. No. 2017-1844), dated October 30, 2019, issued by the Third Chamber of the Supreme Court of Justice.
- SEODANE DOMINGUEZ, Carlos. Photocopies (I): Probative value of photocopies in criminal proceedings. Digital magazine El Ocho Parecer. In: http://eloctavoparecer.com/las-fotocopias-i-valor-probatorio-de-las-fotocopias-en-la-via-penal/
- TAVERAS, José Luis. “The Commercial transactions”: Judicial Gazette, year 22, number 378, September 2018.
[1] SEODANE DOMINGUEZ, Carlos. Photocopies (I): Probative value of photocopies in criminal proceedings. Digital magazine El Ocho Parecer. Retrieved September 24, 2020: http://eloctavoparecer.com/las-fotocopias-i-valor-probatorio-de-las-fotocopias-en-la-via-penal/
[2] Retrieved August 12, 2020:
[3] Article 2 (j) of Law No. 126-02 on Electronic Commerce, Documents and Digital Signatures.
[4] Article 32 of Law No. 126-02 on Electronic Commerce, Documents and Digital Signatures.
[5] Ob. Cit. Article 31
[6] ALARCÓN, Édynson. “The Supreme, The Evidence and Article 1341 of the Civil Code”: Judicial Gazette, year 19, number 349, February 2018, page 21.
[7] Among the judgments consulted, we can mention i. Judgment number 675 (exp. No. 2012-5903), dated August 28, 2019, issued by the First Chamber of the Supreme Court of Justice; ii. Judgment of the First Chamber of the Supreme Court of Justice, dated February 2, 2020; iii. Judgment number 24 (Exp. No. 2012-535), dated 28 of February of 2015, issued by the Civil and Commercial Chamber of the Supreme Court of Justice; and iv. Judgment number 398 (Exp. No. 2008-4053), dated March 28, 2018, issued by the Commercial and Civil Chamber of the Supreme Court of Justice.
[8] ALARCÓN, Édynson. “Private Conventions or Covenants on Evidence”: Judicial Gazette, year 23, number 387, July Feb 2019page 40.
Source:
