Electronic Signatures in Switzerland: Which Signature for Which Contract?
In Switzerland contracts can generally be concluded without the need to comply with any particular formal requirements. A contract is concluded by unanimous mutual expressions of will. The expressions of will can be explicit (either in text form or verbal) or can even be silent.
Legal formal requirements
The law only stipulates specific requirements as to form for certain contracts or contractual clauses.
Where the law dictates that a contract must use the written form (einfache Schriftlichkeit), this means that it must be signed by the contracting parties. For example, an assignment of claims, uncertificated registered shares or shares in a limited liability company must use the written form.
A few legal transactions (for example, termination of rental agreements for residential or business premises, or certain guarantee agreements) require additional content to be included, as well as signatures. This is known as the qualified written form (qualifizierte Schriftlichkeit). The strictest form, notarial certification (öffentliche Beurkundung), must be used for real estate transactions. In contrast to the simple written form, there are currently no digital options for the qualified written form or notarial certification.
Features of e-signatures
Electronic signatures allow the integrity and authenticity of a digital document to be determined at a particular point in time. The e-signatures governed by the ZertES (Swiss Federal Law on Electronic Signature) vary in terms of functionality and security standards.
Only the qualified electronic signature (QES) meets the highest security standard. It is electronically time stamped and guarantees the identity of the signatory and the accuracy of the connected electronic data. Anyone requiring a QES must use one of the Swiss recognized providers.
When is a qualified electronic signature required?
QES offers a digital alternative to a handwritten signature, which is required for the written form.
Use of the written form can also be (voluntarily) agreed by contract. This is particularly recommended for important contracts with high financial risks.
Finally, the written form may be necessary if there is an increased risk of having to enforce a claim through debt collection. In particular, a contract in written form can offer significant advantages in respect of contractual money claims which cannot be secured in any other way. This is because an acknowledgment of debt affirmed by a signature enables a creditor to continue debt collection proceedings halted by the debtor through a short and simple (summary) court process, rather than needing to instigate more costly ordinary court proceedings.
When is a simple e-signature sufficient?
Simple e-signatures, such as those offered by Adobe Sign, DocuSign or Skribble, are normally sufficient where no specific formal requirements are prescribed by law and the financial risks are manageable. Other methods of concluding contracts electronically are also possible. However, for evidential reasons it is always recommended that agreements reached are completely and comprehensively documented.
Finally, it is important that companies operating internationally always check the applicable foreign law requirements as to form and which digital solutions are recognized by the relevant legal system.