With the advancement of digital transformation and the need for agility in business processes, the electronic contract has become an efficient and safe alternative for Brazilian companies.
After all, they find in this modality a solution capable of reducing costs, accelerating sales and increasing the security of contractual operations. The massive adoption of day remote further boosted this practice.
In this article, we will detail the legal foundations that support electronic contracts in Brazil, the types of signature accepted, good practices to ensure legal validity, risks involved and how to mitigate them.
What is an electronic contract?
An electronic contract is a legal agreement signed in a digital environment, in which the parties' expression of intent occurs via computerized systems.
Its format follows the same elements as a traditional contract: capable parties, lawful purpose and form permitted by law. The main difference is in the medium: the document is created, negotiated, signed and stored digitally. This model facilitates negotiations between geographically distant parties, promoting agility in formalization and reducing costs associated with printing, notarization and physical travel.
Furthermore, its structure can integrate automated flows with management by digital systems. Electronic contracts can be used in several areas, such as employment relationships, purchasing, service provision and commercial partnerships. Advances in technology have meant that this modality has gone from being a trend to becoming a standard in companies seeking scalability and legal security.
Legal basis of electronic contracts in Brazil
Three main provisions govern the electronic contract:
- Civil Code: art. 421 and following deal with the autonomy of will, binding nature of contracts and good faith;
- Internet Civil Landmarks (Law 12.965 / 2014): guarantees the legal validity of electronic documents and protects user data;
- Provisional Measure 2.200-2/2001: establishes the Brazilian Public Key Infrastructure (ICP-Brasil), which gives legal validity to digital signatures.
The Lei 14.063/2020 It also differentiates the types of electronic signature, defining three levels: simple, advanced and qualified. In addition to these provisions, other legal frameworks, such as the LGPD, contribute to data governance and reinforce the parties' duties regarding the confidentiality and integrity of information in digital contracts.
Adherence to updated standards is also essential to preserve the validity of agreements signed digitally. It is worth remembering that even without a specific law dedicated to electronic contracts, the current set of regulations already offers solid legal support for its application in most commercial and administrative operations in the country.
Electronic signature types
We list what they are here.
simple electronic signature
Allows you to identify the signatory and associate him/her with the document. Examples: login/password, email. It is recommended for documents with lower legal risk, such as internal communications and read confirmations.
Advanced subscription
It uses elements such as biometrics, geolocation or tokens, ensuring greater security. It is usually adopted in contracts that require greater authenticity control without the need for a digital certificate.
Digital signature (qualified)
Based on the ICP-Brasil digital certificate. It confers presumption of legal validity and is accepted as a substitute for notarization. It is recommended for contracts with greater legal complexity or specific legal requirements, such as agreements with the public administration.
The choice of signature type should be proportional to the risk of the contract. Documents with a high financial impact or potential for litigation usually require more robust signatures. Day-to-day agreements can be signed with simpler methods. The correct application of the signature, in addition to ensuring legal validity, helps to prevent future disputes.
Principles applicable to electronic contracts
Electronic contracts follow the general principles of Civil Law, such as:
- autonomy of will;
- binding nature of the convention;
- consensualism;
- relativity of the effects of the contract;
- objective good faith.
And they also observe specific principles, such as:
- functional equivalence;
- neutrality and sustainability of digital standards;
- preservation of existing legal norms.
These principles ensure that an electronic contract has the same legal effects as a physical contract. They support the legitimacy of acts performed in a digital environment and ensure that the will of the parties will be respected, as long as the formal and material requirements are met.
Respect for these principles allows digitalization to advance without compromising legal certainty. The systematic interpretation of these principles also makes it possible to address regulatory gaps, reinforcing the understanding that digital contracts are fully integrated into the Brazilian legal system.
How to ensure legal validity
To ensure the legal validity of an electronic contract, it is recommended:
- authentication of the parties: use systems that require secure login, token validation or biometrics;
- electronic record: ensure that the document can be consulted and audited at any time;
- document integrity: platforms with encryption and version control prevent inappropriate changes;
- trusted platform: use secure solutions with SSL certificate and compliance with ICP-Brasil.
Good practices like these are in line with measures provided for in legislation such as Legal Framework for the Management of Contaminated Areas and National Solid Waste Policy, which require document traceability. In addition, it is recommended to adopt internal compliance protocols and train teams responsible for digital signature flows.
Choosing technology providers that offer evidence reporting, audit trails and multi-factor authentication also strengthens the legal robustness of the process.
Existing types of electronic contracts
Below, we point out what they are.
interpersonal
Signed between people via email, chat or video conference. It is one of the most common forms in the corporate environment and allows flexibility in negotiation.
Intersystemic
Signed between systems, common in EDI and B2B processes. Automates routine operations, such as purchase orders and invoice issuance.
Interactive
Based on interaction with platforms, such as marketplaces. Used in e-commerce, this type of contract is signed passively, based on the user's acceptance of terms.
Smart contract
Automation via blockchain, with autonomous execution. Mainly used in fintechs and decentralized solutions, it eliminates intermediaries and reduces operational risks.
These models are already discussed in regulatory environments such as ANM Public Consultation on dams and document management topics CETESB. The choice of the most appropriate modality must consider the business risk, the complexity of the operation and the legal requirements involved.
The diversity of models also allows the hiring experience to be customized to the client's profile, optimizing time and legal security.
Legal risks and how to mitigate them
The main risks include:
- ideological falsehood: when someone signs on behalf of a third party without authorization;
- loss of integrity: unauthorized modifications to the contract;
- identity fraud: misuse of data to simulate acceptance.
To mitigate:
- adopt encryption and access control;
- use secure GED platforms.
- establish audit trails with logs;
- advise against sharing passwords or certificates.
A legal requirements management practice helps prevent sanctions. Another relevant measure is to adopt solutions with multifactor authentication and secure backup, in addition to providing liability and event traceability clauses in digital contracts.
It is also recommended to review signature flows regularly, evaluate access logs, and keep staff trained on the responsibilities and risks of each step of the process.
Jurisprudence and practical support
Brazilian courts, such as the STJ and TJ-SP, recognize the validity of electronic contracts as long as there is proof of integrity and authenticity. Even contracts without two witnesses, if signed with a digital certificate, are considered enforceable titles.
These decisions are aligned with the administrative practice of public institutions, which already adopt digital flows. Case law shows that courts value traceability and information security, especially when the digital signature is proven based on the ICP-Brasil or other reliable mechanisms.
Recently judged landmark cases reinforce the trend of accepting electronic contracts as legitimate instruments. Furthermore, the growing number of positive decisions in different courts demonstrates the consolidation of the understanding of the validity of electronic contracts as a legitimate and routine practice in business.
How to make an electronic contract safely
Follow these steps:
- legal review: ensure that all clauses comply with legislation;
- choice of platform: prefer systems that are integrated and compatible with ICP-Brasil;
- robust authentication: tokens, certificates, strong passwords;
- registration and storage: Use secure cloud solutions with version control.
In addition to these steps, it is recommended to establish internal protocols for periodic updating of standard contracts, control of validity periods and contingency plans in case of failure in the signature system.
The use of platforms that integrate signature with document management also contributes to the governance and legal productivity of companies. It is also recommended to implement an approval flow with multiple reviewers, automated notifications about expiration dates and redundant cloud archiving, ensuring continuous access to the contract history.
Therefore, the electronic contract is a valid and efficient legal tool that is aligned with new digital business models. When the legal foundations are respected and good practices are adopted, it offers legal security equivalent to traditional contracts.
Managers who face limitations with expensive or complex platforms should consider affordable solutions with fast support and intuitive usability. This way, they can not only comply with current legislation, but also improve the company's legal and operational performance.
As case law consolidates and technological resources evolve, electronic contracts tend to become not only an alternative, but the predominant model in the country's commercial relations. Adapting to this new reality is not only a question of efficiency, but also of competitiveness. To deepen your knowledge, read this article about digital signature in SST, with detailed information on practical application in regulated sectors.
Rocha Cerqueira specializes in the areas of Environmental Law, Occupational Health and Safety, and Social Responsibility.
