Key points on dematerialised contracts
- A dematerialised contract has the same legal value as a paper contract, provided that the identification of the signatory and the integrity of the document are guaranteed (Articles 1366 and 1367 of the Civil Code).
- The European eIDAS Regulation harmonises requirements for electronic signatures and enables the cross-border recognition of contracts within the EU.
- The absence of appropriate security mechanisms exposes organisations to risks of challenge, falsification and loss of evidential value in the event of litigation.
- Qualified timestamping, electronic seals and evidential electronic archiving form the technical foundations for ensuring the long-term reliability of dematerialised contracts.
What is a dematerialised contract?
The dematerialisation of contracts is not limited to scanning an existing document. It involves a comprehensive transformation of the entire contractual lifecycle.
Definition and distinction from digitisation
A dematerialised contract refers to a legal agreement that is created, signed and stored in electronic form, without recourse to paper. This goes far beyond simple digitisation, which consists of scanning an existing paper document to obtain a digital copy.
The distinction is fundamental from a legal perspective. A digitised contract remains a reproduction whose evidential value depends on the original paper document. By contrast, a natively electronic contract constitutes the original itself. Its evidential weight is based on the technical safeguards implemented at the stages of creation, signature and preservation.
Which types of contracts can be dematerialised?
The vast majority of professional contracts may be dematerialised, including:
- employment contracts (permanent, fixed-term, amendments),
- commercial contracts (sale, services, distribution),
- commercial leases,
- mandates,
- confidentiality agreements.
Certain exceptions nevertheless remain. Instruments relating to real estate security interests (mortgages), deeds of gift or wills, and authentic instruments requiring the involvement of a notary continue to require a paper-based written form.
What is the legal value of a dematerialised contract?
French law recognises that an electronic contract has equivalent value to a paper contract, provided that certain requirements are met. This principle of equivalence is based on several complementary legal instruments.
The Civil Code: Articles 1366 and 1367
Article 1367 completes this framework by defining electronic signatures. An electronic signature must consist of “the use of a reliable identification process that guarantees its link with the instrument to which it relates”. The signature expresses the signatory’s consent to the obligations arising from the instrument.
The Law on Confidence in the Digital Economy (LCEN)
The Law of 21 June 2004 laid down the foundations of the French legal framework applicable to electronic transactions. It recognises the validity of contracts concluded electronically and imposes specific obligations for B2C contracts, including pre-contractual information, acknowledgement of receipt and, in certain cases, a right of withdrawal.
The European eIDAS Regulation: a harmonised framework
Regulation (EU) No 910/2014, known as eIDAS, establishes a unified legal framework for electronic signatures and trust services within the European Union. It distinguishes three levels of signature: simple, advanced and qualified. Only the qualified electronic signature benefits from a presumption of reliability equivalent to a handwritten signature.
The Regulation also ensures the cross-border recognition of electronic signatures between Member States, facilitating the conclusion of international contracts within the EU.
Its revision, known as eIDAS 2, expands the scope of trust services by formally including qualified electronic archiving among the services recognised at European level.
GDPR and the protection of contractual data
The General Data Protection Regulation (GDPR) applies whenever a contract contains personal data. The organisation acting as data controller must ensure the security of that data, limit its retention to what is strictly necessary, and enable data subjects to exercise their rights (access, rectification, erasure).
Conditions for a legally valid electronic contract
For a dematerialised contract to benefit from the same legal force as a paper contract, three cumulative conditions must be satisfied.
Reliable identification of the signatory
Article 1367 of the Civil Code requires that the signature process make it possible to identify with certainty the person entering into the commitment. Depending on the required level of security, this identification may rely on different mechanisms:
- identity verification via email and SMS code for a simple signature,
- enhanced identity verification for an advanced signature,
- a qualified certificate issued by an approved provider for a qualified signature.
Where the contracting party is a legal person rather than a natural person, the electronic seal replaces the signature. It attests to the origin of the document and its integrity without identifying an individual signatory.
Informed consent of the parties
Consent is a fundamental condition of validity for any contract (Article 1128 of the Civil Code). In a digital environment, additional safeguards are required. The signatory must receive clear information about the content of the commitment before signing.
For B2C contracts, the LCEN requires that general terms and conditions be made available and that the order be confirmed before payment.
Proof of consent relies on the traceability of actions, including:
- timestamping of the validation click,
- recording of the IP address,
- retention of an audit trail.
Integrity of the document over time
Article 1366 of the Civil Code makes the evidential value of electronic writing conditional on its preservation “in conditions that ensure its integrity”. This means that no modification may be made after signature without leaving a trace.
This guarantee is based on technical mechanisms such as:
- a digital fingerprint (hash) of the document,
- qualified timestamping, which fixes the content at a specific point in time,
- evidential electronic archiving, which preserves these elements throughout the legally required retention period. This period varies according to the nature of the contract: five years after the end of the relationship for an employment contract, ten years for a commercial contract.
Risks associated with poorly secured dematerialised contracts
The absence of appropriate security mechanisms exposes organisations to several categories of risk.
Identity theft is a real threat: a malicious third party may use another person’s credentials to conclude a contract in their name.
Document falsification is an equally serious concern. Without mechanisms guaranteeing integrity, a contract may be altered after signature (amounts, dates, clauses) without such changes being detectable.
The loss of evidential value in the event of litigation is the primary legal risk. A contract whose authenticity or integrity cannot be demonstrated will be set aside by the court. Recent case law shows that courts require a structured evidential file, including:
- a file containing transaction data,
- a common reference linking it to the signed contract,
- certificates of compliance from the service provider.
A lack of traceability makes it impossible to prove the certain date of a commitment or the precedence of a document.
Non-compliance with the GDPR also exposes organisations to sanctions of up to 4% of worldwide annual turnover.
Solutions to secure and preserve dematerialised contracts
Several technical mechanisms make it possible to ensure the validity and longevity of electronic contracts.
- Electronic signatures authenticate the identity of the signatory and express consent. The electronic seal certifies the institutional origin of a document issued by a legal person. Both mechanisms satisfy the identification requirement set out in the Civil Code.
- Qualified timestamping provides an additional, decisive safeguard. It attests to the existence of a document at a precise moment and irreversibly fixes its content. In the event of a dispute over the date of a commitment or an alleged subsequent modification, timestamping constitutes enforceable technical evidence.
- Evidential electronic archiving ensures the secure preservation of contracts throughout their entire legal lifecycle. A system compliant with recognised standards (NF Z42-013, ISO 14641) ensures that archived documents cannot be altered and remain accessible and legible over time.
Checklist: key steps to dematerialise contracts securely
To ensure the validity of your dematerialised contracts, the following actions should be implemented:
- Identify the statutory retention periods applicable to each type of contract (five years after termination for employment contracts, ten years for commercial contracts).
- Verify the eIDAS qualification status of your service provider.
- Combine qualified timestamping and electronic sealing for contracts involving significant financial or legal stakes.
- Include a dematerialisation clause in your general terms and conditions of sale or purchase.
- Test the retrieval of your archives to ensure that you can produce a contract together with proof of integrity within a reasonable timeframe.
- Document your audit trail by retaining information relating to each signature: identity of the signatory, date and time, and the mechanism used.
Securing dematerialised contracts: a matter of compliance and competitiveness
The dematerialisation of contracts is a driver of productivity and competitiveness for organisations. Its implementation nevertheless requires close attention to conditions of legal validity: identification of signatories, collection of consent and preservation of integrity over time.
Digital trust solutions – electronic signatures and seals, qualified timestamping, and evidential archiving – make it possible to meet these requirements while protecting documents against the risks of fraud and challenge.
Would you like to secure your dematerialised contracts? Discover Evidency’s solutions to ensure their legal validity and long-term reliability.
