Approval of a major interested party transaction sample. Approval of a transaction with an interest in an LLC. Decision on interested party transaction for tender sample
From July 1, 2018 to January 1, 2019, customers have a transition period - they are allowed to carry out both electronic and paper procedures. Starting from 2019, tenders, auctions, quotations and requests for proposals on paper will be prohibited, with eight exceptions.
Read what purchases to make on the ETP, how to choose a site and receive electronic signature, by what rules to conclude contracts during the transition period and after.
According to the results electronic auction a contract was signed with the digital signature of a specialist from the customer’s organization, when the preamble to the contract indicated another person who should have signed the contract. What adverse consequences may result from such a signing?
According to Part 7 of Art. 70 of the Law on the Contract System within three working days from the date of placement in a single information system a draft contract signed with an enhanced electronic signature of a person entitled to act on behalf of the winner of an electronic auction, and provision by such winner of security for the execution of the contract, and the customer is obliged to place the contract signed with an enhanced electronic signature of a person entitled to act on behalf of the customer in a unified information system.
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According to Part 2 of Art. 60 of the Law on the Contract System, documents and information sent in the form of electronic documents by a participant in an electronic auction, a customer, must be signed with an enhanced electronic signature of a person who has the right to act on behalf of the participant in such an auction, the customer.
Enhanced electronic signature keys, as well as electronic signature verification key certificates intended for use for the purposes of this article, are created and issued in accordance with Part 2 of Art. 5 present Federal Law.
According to Part 2 of Art. 5 of the Law on the Contract System, enhanced electronic signature keys, as well as certificates of keys for verifying electronic signatures, intended for use for the purposes of the Law on the Contract System, are created and issued by certification centers that have received accreditation for compliance with the requirements of Federal Law of April 6, 2011 No. 63-FZ “On electronic signature”, or in cases provided for by international treaties Russian Federation, certification centers created in accordance with the rules of law of a foreign state.
In turn, in accordance with paragraph 1 of Art. 2 of the Federal Law of April 6, 2011 No. 63-FZ (as amended on June 28, 2014) “On Electronic Signature” electronic signature - information in electronic form, which is attached to or otherwise associated with other information in electronic form (signed information) and which is used to identify the person signing the information.
That is, in fact, an electronic signature allows you to “identify the person signing” a particular document. But this, in our opinion, does not mean that it gives the right to sign contracts.
Such a right should be recorded in the appropriate power of attorney.
Let us remind you that according to Part 1 of Art. 185 of the Civil Code of the Russian Federation, a power of attorney is recognized as a written authority issued by one person to another person or other persons for representation before third parties.
Thus, despite the preamble of the contract, which indicates a person other than the one who signed the contract, it is essential, in our opinion, that the specialist who signed the contract has a power of attorney with the right to sign the contract at the time of signing the contract. In this case, it is obvious that the date of issuance of the power of attorney must be earlier than the date of conclusion of the contract. Also, for example, the journal for issuing a power of attorney, if it is kept in the customer’s organization, must “confirm” this information.
At the same time, we can say that at the time of signing the contract, the specialist had the right to sign the contract, recorded in the corresponding power of attorney, and in the preamble there was a typo (technical error) and the contract was actually signed with an enhanced electronic signature of the person who has the right to act on behalf of the customer (in accordance with Part 7 of Article 70 of the Law on the Contract System).
It should be noted that Art. 70 is included in Chapter 3 of the Contract System Law. In turn, according to Art. 47 of the Law on the Contract System, in case of violation of the provisions of Chapter 3 regulating the determination of the supplier (contractor, performer), such determination may be declared invalid upon the claim of an interested person.
At the same time, according to paragraph 2 of Art. 3 of the Law on the Contract System, the definition of a supplier (contractor, performer) is a set of actions that are carried out by customers in the manner established by the Law on the Contract System, starting with the placement of a notice of the purchase of goods, work, services to meet state needs (federal needs, needs of the subject RF) or municipal needs or in cases established by this Federal Law from sending an invitation to take part in determining the supplier (contractor, performer) and ending with the conclusion of a contract.
Thus, there is a risk that such a contract may be declared invalid at the request of any interested party.
The above (the presence of an appropriate power of attorney from a specialist) can help minimize the risks of such recognition.
Also Art. 7.32 of the Code of Administrative Offenses of the Russian Federation establishes liability for violation of the procedure for concluding a contract. The situation of signing a contract by a person other than the one specified in the preamble of the contract is not regulated by the norm. At the same time, Part 3 of Art. 7.32 of the Code of Administrative Offenses of the Russian Federation establishes liability in the form of a fine of 50 thousand rubles. for evading signing a contract. It cannot be ruled out that this rule may also be applied if the signing of a contract by another person is qualified as the customer’s evasion from signing the contract.
When can a contract manager sign a contract instead of a manager?
I am a contract manager, and the head of the institution is chief physician. There is only one digital signature in the institution, issued in the name of the head physician. Do I, as an employee, have the right to job responsibilities contract manager to sign contracts with the manager's digital signature? Or can this only be done with your own digital signature made in the prescribed manner? And is it possible to assign the right to sign contracts to the contract manager?
The right of the contract manager to sign contracts on behalf of the customer can be formalized by issuing the corresponding power of attorney by the customer.
In accordance with Part 4 of Art. 38 of Law No. 44-FZ, the responsibilities of the contract manager include ensuring the implementation of procurement, including the conclusion of contracts. This functional responsibility implies actions aimed at ensuring the implementation of the procurement. But not signing a contract on behalf of the customer. The law does not give the contract manager the right to sign contracts on behalf of the customer.
This position is confirmed by the conclusions of the Ministry of Economic Development of Russia, set out in letter No. D28i-2485 dated August 28, 2015.
Within three working days from the date of posting in the UIS a draft contract signed with an enhanced electronic signature of a person (having the right to act on behalf of the auction winner), and the winner providing security for the execution of the contract, the customer is obliged to place the contract in the UIS. The contract must be signed with an enhanced electronic signature of a person who has the right to act on behalf of the customer (Part 7, Article 70 of Law No. 44-FZ).
In accordance with Part 1 of Art. 2 of the Federal Law of 04/06/2011 No. 63-FZ “On Electronic Signature”, an electronic signature is information in electronic form that is attached to other information in electronic form (signed information) or is otherwise associated with such information and which is used to identify a person, signing information.
What types of electronic signatures are there?
Law No. 63-FZ (Article 6) divides electronic signatures into simple and enhanced. In this case, the enhanced signature is divided into qualified and unqualified.
Information signed with a qualified signature is recognized as an electronic document, equivalent to a paper document. Information in electronic form, signed with a simple electronic signature or an unqualified electronic signature, is recognized as an electronic document equivalent to a document on paper, signed with a handwritten signature, in cases established by federal laws adopted in accordance with them; legal acts or an agreement between participants in electronic interaction.
When concluding contracts for electronic platforms Based on the results of auctions, Law No. 44-FZ provides for the signing of contracts in electronic form using an enhanced electronic signature. That is, the contract is concluded in electronic form and is equivalent to one concluded on paper.
Possibility of transferring electronic signature
When using enhanced electronic signatures, participants in electronic interaction are required to ensure the confidentiality of electronic signature keys. In particular, do not allow the use of electronic signature keys belonging to them without their consent (Clause 1, Article 10 of Law No. 63-FZ). However, the cited paragraph of the law does not imply the situation transfer of rights use of an enhanced electronic signature to another person on the basis of any administrative document or power of attorney, but only indicates technical feasibility use of an electronic signature by another person. For example, this could be a contract manager acting with the consent and under the control of the owner of the electronic signature verification key certificate.
Since an electronic signature is equivalent to a handwritten signature, responsibility for its use lies with its owner. Law No. 63-FZ does not provide for the transfer of the right to use an electronic digital signature from its owner to another person.
Right to sign a contract
According to the Civil Code of the Russian Federation (Part 1, Article 53), a legal entity acquires civil rights and assumes civil responsibilities through its bodies, acting in accordance with the law, other legal acts and the constituent document. The procedure for the formation and competence of the bodies of a legal entity are determined by law and the constituent document.
The constituent document may provide that the authority to act on behalf of a legal entity is granted to several persons, acting jointly or independently of each other. Information about this is subject to inclusion in the Unified State Register legal entities.
FOR REFERENCE
In accordance with Part 1 of Art. 2 of Law No. 44-FZ, the legislation of the Russian Federation on the contract system in the field of procurement of goods, works, and services is based, inter alia, on the provisions of the Civil Code of the Russian Federation.
Only the body determined by the customer’s constituent document (manager) has the right to sign a contract on behalf of the customer. Or another person authorized by order or other official document who has the right to act on behalf of a legal entity without a power of attorney. Information about such persons must be entered into the Unified State Register of Legal Entities.
The right of the contract manager to sign contracts on behalf of the customer on electronic platforms can be formalized by issuing the corresponding power of attorney by the customer. In this case, information about the contract manager is not required to be entered into the Unified State Register of Legal Entities.
Thus, the manager can sign a contract on an electronic platform personally using his enhanced electronic signature, or he can, by a separate order or power of attorney, authorize a contract manager to sign contracts on electronic platforms on behalf of the customer.
If the contract is signed by the customer's manager, the contract preamble must indicate that the contract is signed by the customer in the person of the manager acting on the basis of the regulations/charter. In this case, the contract must be signed with an enhanced electronic signature of the customer’s manager.
But, let’s say, by decision of the customer, the contract manager is given the right to sign contracts on electronic platforms on behalf of a legal entity. In this case, the preamble of the contract must indicate that the contract is signed by the customer in the person of the contract manager. In addition, it is necessary to indicate the details of the power of attorney, on the basis of which the contract manager is authorized to sign the contract.
Only if these conditions are met, the contract must be signed with an enhanced electronic signature of the contract manager.
In our opinion, the contract must be signed with an enhanced electronic signature of the person whose name is indicated in the preamble to the contract. Such person must have the appropriate authority to sign contracts on behalf of the customer.
Yes, the head (rector) has the right to delegate the signing of contracts to an employee of the relevant institution, unless otherwise provided constituent documents such a budgetary institution.
Many organizations have long become active users of systems that provide electronic document management. But in the course of their activities they often encounter obstacles such as regulatory authorities. This is due, first of all, to the use of such an element of the system as an electronic contract.
In most cases, tax or other services refuse to recognize the validity of such documents, since they are not particularly familiar with similar forms and methods of verifying their legal significance. And all this despite the fact that the law does not prohibit drawing up and using such agreements.
What parameters are used to determine the legal significance of contracts in electronic form?
For almost any transactions carried out in an organization, the law provides for a paper form, but when drawing it up the following points must be taken into account (according to the Civil Code of the Russian Federation):
- the method used in the transaction process;
- the method used to carry out the signature.
That is why companies that give preference to such components of the information system as electronic contracts need to remember how the exchange will be carried out between the parties and how they will sign it.
How to sign an agreement electronically?
In this case, the company has the right to choose. She can use one of two types of analogues of a handwritten signature, which our legislation provides for. This can be either a facsimile or an electronic digital signature.
The second option is the most common, since it greatly simplifies conducting all kinds of transactions both within the enterprise and outside it, that is, with partners. Despite the existence of legally possible ways to sign such documents, the legality of an electronic offer agreement can still be approved through other acceptable analogues of a handwritten signature. Free choice also applies to the procedure for concluding transactions.
Methods of concluding contracts permitted by law
There are two ways to draw up documents between the parties:
- By sending a paper contract. To do this, one of the parties makes required document, signs it properly, and then transfers it to the other party using electronic means communication, that is, through a mailbox Email. According to paragraph 2 of Art. 434 of the Civil Code of the Russian Federation, it is this method that allows one to identify the sender of the contract and, accordingly, recognize the legality of the transaction.
- Electronic form of the agreement. When choosing this method, one party must create a document specifically in the organization’s information system. The authenticity of the transaction will be the fact that the other party has begun to fulfill all the conditions specified in the drawn up agreement.
Key tips for companies planning to use electronic contracts
If partner companies have decided to use the remote method of concluding transactions, then they can safely begin to use this method, since it is not prohibited by Russian law. In this case, both parties are obliged to indicate in their documents that important point that they recognize the agreement in in electronic format legally significant, as well as having its specific analogue as a handwritten signature.
As for the signature, this integral element must be agreed upon in advance between the companies. As such means, you can use both your email address and your personal information to log into the site. The first option is more reliable, since it can be used as full-fledged evidence in court proceedings relating to any work issues. This address can be recognized as a kind of electronic digital signature, but which does not have any legal significance.
Authentication
In such a situation, it is mandatory to store all incoming or sent information on electronic mail servers, since in court it will not be enough to provide files from your personal computer. In addition, it is strongly recommended to make a payment (advance is possible) for the transaction concluded between the parties. To do this, you need to make a bank payment, indicating the following information:
- The email address of either only the payer, or the payer and recipient of funds.
- An analogue of a handwritten signature used to conclude transactions.
- The number of the document itself according to which payment is made.
- The date and time it was compiled.
The electronic form of the agreement, in accordance with which payment was made, indicating the required details, will also make it possible to use this data to dispute conflicts that have arisen between the parties to the transaction. This point is provided for in the legislation of the Russian Federation, namely in paragraph 2 of Art. 434 Civil Code of the Russian Federation. In addition, through this method it will be possible to identify the identities of both parties.
You have the opportunity to use a facsimile as an additional element, which will also confirm the authenticity of the documents, since it is a copy of a handwritten signature.
Concluding an agreement not in paper, but in electronic form saves the parties to the transaction both time and money. However, this method of formalizing legal relations also has some risks, especially from the point of view of proving the conclusion of such an agreement. What rules must be followed for a book-entry agreement to be valid? Take into account the requirements of the law, use an electronic signature or enter into an initial agreement in paper form with the condition of further electronic interaction.
Recently, electronic document management has become widespread, allowing its users to optimize time and financial resources, promptly solve assigned tasks, including tasks related to the conclusion of civil transactions. Subjects entrepreneurial activity can conclude a civil contract electronically, signing it with an electronic signature, as well as establish electronic document management for their convenience. If they wish, they can even agree to make payments under such an agreement not with ordinary money, but with electronic money.
Usage modern technologies makes life easier for participants in the transaction, but at the same time it is associated with certain risks in proving the fact of concluding an electronic contract.
The law provides for the possibility of concluding electronic contracts
By general rule transactions between legal entities must be made in simple written form, with the exception of transactions requiring notarization (Clause 1, Article 161 of the Civil Code of the Russian Federation). A transaction in writing must be concluded by drawing up a document expressing its contents and signed by the person or persons entering into the transaction, or their duly authorized persons (clause 1 of Article 160 of the Civil Code of the Russian Federation).
The law considers the written form of a contract quite broadly. Thus, an agreement in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging documents through postal, telegraphic, teletype, telephone, electronic or other communications that make it possible to reliably establish that the document comes from a party to the agreement (clause 2, Article 434 of the Civil Code of the Russian Federation). At the same time, when making transactions, facsimile reproduction of a signature using mechanical or other copying means, an electronic signature or another analogue of a handwritten signature can be used only in cases and in the manner provided for by law, other legal acts or agreement of the parties (Clause 2 of Article 160 of the Civil Code of the Russian Federation ).
There are several cases in which the conclusion of electronic contracts by signing with an electronic signature is permitted by regulations:
- conclusion of a contract based on the results of an electronic auction on a special Internet platform - a unified information system (Article 70Federal Law dated 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”);
- use of a simple electronic signature when providing various government and municipal services (Decree of the Government of the Russian Federation dated January 25, 2013 No. 33 “On the use of a simple electronic signature in the provision of state and municipal services”);
- signing electronic notifications on the appointment of the head and (or) members of the board of directors of professional participants in the securities market, sent to the Central Bank of the Russian Federation (information letter of the Bank of Russia dated October 24, 2014 No. 06-57/8401 “On the submission of notifications in the form of an electronic document with an electronic signature” ) and etc.
For the purpose of concluding civil contracts or formalizing other legal relations in which persons exchanging electronic messages participate, the exchange of electronic messages, each of which is signed in the prescribed manner with an electronic signature, is considered as an exchange of documents (Part 4 of Article 11 Federal Law of July 27, 2006 No. 149-FZ"About information information technology and on information protection"). When using an electronic signature to sign electronic contracts in ordinary civil transactions, the parties must comply with the requirements special legislation regulating the legal and technical aspects of the use of electronic signatures in the Russian Federation, primarily the provisions Federal Law dated April 6, 2011 No. 63-FZ“On Electronic Signature” (hereinafter referred to as the Law on Electronic Signature).
Electronic agreement requires enhanced electronic signature
The legislation recognizes the equivalence of handwritten and electronic signatures, but only if certain conditions are met (Article 1, paragraph 3 of Article 4 of the Law on Electronic Signatures). In particular, information in electronic form signed with a qualified electronic signature is not recognized as an electronic document equivalent to a document on paper signed with a handwritten signature, if laws or regulations adopted in accordance with them establish a requirement for the need to draw up a document exclusively on paper ( Clause 1, Article 6 of the Law on Electronic Signatures).
In addition, if an electronic document is signed with an enhanced electronic signature and is recognized as equivalent to a paper document signed with a handwritten signature, then for such a document it is considered completed statutory or business customs require certification with a seal (about the mandatory nature of seals for business entities, see "EZh", 2014, No. 43, p. 09). True, the participants in electronic circulation themselves or the legislator can establish and additional conditions to recognize such a requirement as fulfilled (clause 3 of Article 6 of the Law on Electronic Signatures).
The fact of using technical means and devices cannot be a basis for recognizing an electronic signature as invalid or obtained in violation of the established procedure for document execution. The normative consolidation of this principle gives official status to an electronic signature, equating it to a handwritten one.
Taking into account the above legal norms, we can come to the conclusion that the law allows the conclusion of civil contracts through the exchange of documents signed with enhanced (rather than simple) electronic signatures, since a simple electronic signature can be recognized as equivalent to a handwritten one only in cases provided for by law, other regulations legal acts of the Russian Federation or an agreement between participants in electronic interaction (Part 2 of Article 6 of the Law on Electronic Signatures).
To use an enhanced qualified electronic signature, you must obtain a qualified certificate with an electronic signature verification key, created and issued by a certification center accredited in the manner prescribed by Order of the Ministry of Telecom and Mass Communications of Russia dated November 23, 2011 No. 320.
The terms of the agreement on correspondence on the Internet will give it legal force
Agreements in electronic form, signed with a simple electronic signature or an enhanced unqualified electronic signature, can be equal in legal force to agreements on paper only if they are concluded in pursuance of framework agreements previously concluded by the parties, which provide for such a procedure for concluding subsequent agreements (para. 1 clause 2 of the Recommendations for concluding agreements in electronic form, approved by the Association of Russian Banks on December 19, 2012, hereinafter referred to as the Recommendations).
However, if the parties follow the path of first concluding a paper agreement with subsequent document flow in electronic form (conclusion additional agreements, exchange of documents and information, etc.), you can generally do without using an electronic signature, since the current legislation of the Russian Federation allows the exchange of information via e-mail without concluding an agreement on the exchange of electronic documents and without using an electronic signature. Receiving or sending a message using an electronic email address, known as the mail of the person himself or the official mail of his authorized employee, indicates the commission of these actions by the person himself, until he is proven otherwise (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 12, 2013 No. 18002/12 on case No. A47-7950/2011). This method of interaction between participants in civil transactions, enshrined in an agreement, is currently completely legitimate, provided that the parties have enshrined it in their agreement (resolution of the Federal Antimonopoly Service of the Central District dated January 21, 2010 No. F10-5994/09 in case No. A14-3050/2009 /122/15, Moscow District dated May 17, 2013 in case No. A40-102005/12-57-977).
If neither the law nor the agreement of the parties establishes requirements for documenting information on certain legal relations, participants in civil transactions have the right to use the exchange of electronic letters without affixing an electronic signature, provided that such letters make it possible to identify the sender, addressee, date and time of its sending and information about receipt so that they can be regarded as relevant, admissible and reliable evidence (resolution of the Federal Antimonopoly Service of the East Siberian District dated 06/03/2014 in case No. A33-15050/2013).
State registration and electronic contract are incompatible
It must be borne in mind that not all contracts can be concluded electronically. In particular, it is prohibited to conclude electronically contracts that require mandatory notarization (rent agreement, purchase and sale agreements, donations, pledge of shares in the authorized capital of a business company).
The question of the need to comply with a simple written form of transactions when making them between legal entities. On the one hand, signing an electronic agreement with an enhanced qualified electronic signature is recognized as equivalent to a document drawn up in writing and signed with a handwritten signature (Article 1, Part 3, Article 4 and Clause 1, Article 6 of the Law on Electronic Signatures). But on the other hand, information in electronic form, signed with a qualified electronic signature, is recognized as an electronic document equivalent to a paper document signed with a handwritten signature, except in cases where laws or regulations adopted in accordance with them establish a requirement for the need to draw up a document exclusively on paper (Clause 1, Article 6 of the Law on Electronic Signatures).
In fact, the requirement for participants in civil transactions to comply with the simple written form of the transaction, failure to comply with which entails its invalidity, is such a requirement to draw up a document exclusively on paper, as evidenced by the text of the wording itself: “The agreement must be drawn up in simple written form.” . For example, the requirement of Art. 362 of the Civil Code of the Russian Federation on the mandatory simple written form of a guarantee agreement.
If the law does not provide for such a consequence for non-compliance with the simple written form of a transaction as declaring it invalid, then there are no obstacles to concluding it electronically.
The provision on compliance with a simple written form of a transaction cannot be regarded as a requirement to draw up a document exclusively on paper, therefore such a transaction can be executed electronically and signed with an electronic signature (for example, a supply agreement between companies). However, failure to comply with the simple written form of the transaction deprives the parties of the right in the event of a dispute to refer to witness testimony to confirm the transaction and its terms, but does not deprive them of the right to provide written and other evidence (clause 1 of Article 162 of the Civil Code of the Russian Federation).
Participants in the turnover will also not be able to conclude an agreement in electronic form, which must be submitted for state registration to formalize the transfer of rights (real estate purchase and sale agreement, real estate lease agreement, mortgage agreement, etc.), since Federal Law of July 21, 1997 No. 122-FZ"ABOUT state registration rights to real estate and transactions with it” does not provide for the possibility of submitting flash drives with electronic contracts for registration instead of paper documents. Despite the fact that it is not the agreements themselves that are subject to registration, but only the transfer of rights under them, the conclusion of agreements in electronic form will not allow the registrar to affix a registration stamp on them indicating the registration has been completed.
The electronic signature must be valid and the certification center must be accredited
The conclusion of an electronic contract occurs according to the “offer - acceptance” model, which is exchanged between the parties. They must have enhanced qualified electronic signatures to sign electronic documents.
The Electronic Signature Law does not require that parties to an electronic transaction receive their enhanced qualified electronic signatures from the same accredited certification center. These can be different certification centers, and the authenticity of applying to them to obtain a qualified certificate can be clarified on the basis of the documents submitted (questionnaire, constituent and other documents of the applicant, application for concluding an agreement to perform work on the production of a certificate for an electronic signature verification key and an electronic signature key) .
The conclusion of an electronic contract itself can take place on an Internet platform that provides such an opportunity, or if one of the parties to the contract is professionally engaged in commercial activities, offering its clients this way of completing a transaction. For example, a microfinance organization that provides interest-bearing loans on its website provides the opportunity to register an account, install special software, obtain an electronic signature through one or another certification center and begin work.
The conclusion of electronic contracts is also possible through the use of special functional systems with the installation of the necessary software, within which electronic document flow is possible. In practice, such a service is often provided by certification centers themselves.
Evidence that a party to a contract has drawn up documents (including an offer, an acceptance) in electronic form can be a qualified electronic signature of the sender of the document (Clause 2 of Article 160 of the Civil Code of the Russian Federation). Availability of electronic qualified signature in an electronic document, the authenticity of which is certified by the verification program, allows us to conclude that it was drawn up by a specific person, that is, “comes from a party to the contract” (Clause 2 of Article 434 of the Civil Code of the Russian Federation). However, this presumption can be rebutted in court.
When concluding an electronic agreement with its counterparty, a participant in the turnover must verify that he has an enhanced qualified electronic signature on the basis of a qualified certificate created and issued by a certification center, the accreditation of which is valid on the day of its issuance, while the certificate itself is valid at the time of signing the electronic document. If the qualified certificate contains any restrictions, it is also necessary to check whether these are met.
Otherwise, without carrying out the above check, the participant in the turnover risks facing the fact that the court simply recognizes the fact of concluding an electronic contract as unproven. Thus, in one case, the court, refusing to satisfy the plaintiff’s request for recovery of the cost of equipment, pointed out that they had not provided evidence confirming the fact of concluding a supply agreement and signing it with an electronic signature. The plaintiff, in support of his arguments, presented flash drives on which the files constituting the electronic contract were presented, however, according to the expert’s conclusion, the electronic documents on behalf of the defendant were signed with an invalid electronic signature. The plaintiff did not provide the electronic signature key certificate, as well as evidence of its inclusion in the register of electronic signature key certificates (resolution of the Federal Antimonopoly Service of the Central District dated 04/07/2014 in case No. A62-2893/2011).
In addition, to confirm the fact of concluding an electronic contract, the plaintiff can involve in the case an accredited certification center that issued the corresponding qualified electronic signature certificate (or two such certification centers at once, if he and the defendant issued certificates in different centers), which can confirm ownership certificates to the parties to the dispute. As a last resort, you can apply for the appointment of a computer examination in the case to eliminate all controversial issues.
In conclusion, we note that participants in civil transactions have the right not only to enter into an electronic contract when there are no obstacles to this, but also to make payments under it electronically in cash through credit organizations. This possibility is provided for in Art. 7, 9, 12, 13 Federal Law of June 27, 2011 No. 161-FZ“On the national payment system.”
Resolution of the Federal Antimonopoly Service of the Central District dated April 24, 2013 in case No. A62-2893/2011
The limited liability company filed a claim with the arbitration court against individual entrepreneur to recover the cost of equipment that the company purchased for the defendant at its own expense, as well as the income that the defendant should have derived from the use of such equipment. In the first instance, and then in the appellate instance, the plaintiff lost the dispute. The flash drive presented by the plaintiff with the files of the supply agreement, according to the courts, did not confirm the fact of concluding the supply agreement.
However, the district court did not agree with this conclusion. The case file included an expert report, in which files containing the text of the supply agreement were analyzed. The time of creation of these files was established by experts and recorded according to the FAT file system, while the contracts contained an electronic signature. Since the lower court did not give any assessment to this evidence, the district court overturned the decision and sent the case for a new trial.
