Brazil: Validity of electronic signatures on extrajudicial enforcement instruments

In brief

Law No. 14.620/2023, in force since 14 July 2023, includes Paragraph 4 in Article 784 of the Brazilian Civil Procedure Code (CPC) establishing that extrajudicial enforcement instruments may be “constituted or attested by electronic means” and that “any type of electronic signature provided for by law is accepted, and the signature of witnesses is not required whenever its integrity is verified by a signature provider service.”

In more detail

In fact, there has never been any room for discussion regarding the validity of electronic documents. This is due to the provisions of the Civil Code, which establish as a rule that the parties may freely choose the form of the legal transaction, and it is certain that, only in exceptional situations does the law require compliance with a certain form, under penalty of nullity. This is the case, for example, in Article 842 of the Civil Code.

What was much discussed is whether an electronically signed document loses executive effectiveness if it was certified by an entity that has not been previously accredited through the Brazilian Public Key Infrastructure (ICP-Brasil). There were positions arguing that the electronic signature certified by an entity not accredited through ICP-Brasil removed the executive effectiveness of the document (to illustrate this situation, refer to the following judgments of the TJ/SP, Interlocutory Appeal No. 2289091-25.2019.8.26.0000, 11th. Chamber of Private Law, Civil Appeal 1003531-41.2019.8.26.0510; 26th Chamber of Private Law).

With the inclusion of Paragraph 4 in Article 784 of the CPC and the mention that “in executive instruments constituted or attested by electronic means, any type of electronic signature provided for by law is admitted,” the above discussion becomes irrelevant, to the extent that an electronic signature certified by an entity not accredited by ICP-Brasil is expressly provided for in Article 4 of Law 14.063/2020.

Therefore, electronic signatures certified by entities not accredited by ICP-Brasil do not remove the enforceability of the document (in fact, the new rule applies even to executions already proposed in which this aspect has not yet been analyzed).

The controversial now concerns  whether the signature of the witness can be waived, as the electronic signature is capable of ensuring the integrity of the document.