Signature requirements

The signature requirements pertain the legal or contractual requirements in order to make a legally effective declaration of intent or a legally binding contract.

Possibility to replace a specific formal requirement of making a binding declaration of intention

Chilean law does not provide for a generally applicable formality aimed at perfecting contracts or unilateral statements of will. In general, contracts are perfected by means of an agreement, even by means of verbal and tacit agreements. Exceptionally, in the case of certain contracts, the law requires compliance of certain formalities, absent which, the contract is considered to be null or non-existent. In other cases, absent such formalities, the relevant agreement, although valid and existent, cannot be proven in court.

In the case that the law requires a specific formality of existence (e.g. purchase and sales of real estate, or the contract of Promise), the absence of such formality cannot be replaced. 

Presence of any specific formal requirements to effectively conclude a loan agreement

Loan agreements are consensual contracts governed by Law No. 18,010 on Money Credit Operations and by the Chilean Civil Code. Despite being consensual, the Civil Code requires that the acts or contracts containing the delivery or promise of delivery of a thing worth more than 2 UTM (approx. 137 USD) shall be recorded in writing. 

Additionally, specific laws establish formal requirements for certain loan agreements (e.g. Article 69 No. 7 of DFL N ° 3 – General Banking Law – requires that the mortgage loans granted by banks shall be recorded in a public deed).

It is normal practice in Chile that loans are documented through promissory notes, which are technically not a loan agreement, rather than a unilateral statement of will. Promissory notes must be extended in writing and must comply with the requirements set forth in Law No. 18,092. Promissory notes can also constitute a “título ejecutivo”, if among other requirements, the Stamp Tax which levies such notes has been duly paid and their signatures duly authorised before a Notary Public. Additionally, in case of loan agreements involving larger amounts (i.e. financing and Project financing) it is very usual to grant such loan agreements by means of public deed that also constitutes a título ejecutivo. 

A título ejecutivo entitles the holder thereof to summary proceedings (acción ejecutiva) in Chile for collection of liquidated amounts due and payable under such document, without the need of a previous procedure in which the existence of the debt is discussed.

Process of conclusion of a contract by using a qualified electronic signature in practice

Law No. 19,799, on Electronic Documents, Electronic Signature and Signature Certification Services, became effective in 2002, setting forth that acts and contracts granted or celebrated by individuals or entities, executed by means of electronic signature, shall be valid in the same way and shall produce the same effects than those executed in writing and in paper support, except those cases in which the law requires a formality that is not subject to be fulfilled by means of electronic document, those in which the law requires the personal concurrence of any of the parties (e.g. public deeds and documents to be executed before a notary public), and those related to family law. In practice, the electronic signature has slowly become part of everyday life, nevertheless the use of advanced electronic signature in some documents provide a different proof value to the document. 

In Chile there are relevant vendors of qualified electronic signatures, these are:

1. E-cert Chile: ht

tp://www.e-certchile.cl

Acepta.com: http://www.acepta.com

E-sign S.A.: http://www.e-sign.cl

Certinet S.A.: http://www.certinet.cl

E-partners: http://www.pkichile.cl

BPO-Advisors (IDok): https://idok.cl/

Thomas Signe: https://www.thomas-signe.cl

Abancert: https://www.abancert.cl/

These vendors need accreditation provided by de competent authority which is the Undersecretary of Economy, Promotion and Reconstruction, nowadays Undersecretary of Economy and of Smaller Size Businesses. Once they have the accreditation, the Authority is responsible for registering it in a public register held by the same Undersecretary.

Legal consequences to a contract in case of not fulfilling formal requirements

Chilean law does not provide for a generally applicable formality aimed at perfecting contracts or unilateral statements of will. In general, contracts are perfected by means of an agreement, even by means of verbal and tacit agreements. Exceptionally, in the case of certain contracts, the law requires compliance of certain formalities, absent which, the contract is considered to be null or non-existent. In other cases, absent such formalities, the relevant agreement, although valid and existent, would not be judicially enforceable.

In those cases that the law requires to be granted by means of a public deed (e.g. purchase and sales of real estate), such contracts signed without that solemnity will be considered as not executed or celebrated.
 

Usual practice of signing contractual agreements in the B2B sector

From a practical point of view, it will generally depend on the relevance of the given contract, ranging from accepted purchase orders, email interchange to formal written contracts. 

However, as stated above, certain contracts, by their specific nature, must be granted in writing, either as a requirement of existence and/or validity, or to allow their proof in Court. 

Without prejudice to the above, electronic signatures are becoming increasingly common.

Usual practice of signing contractual agreements in the B2C sector

Same answer as letter e) above. There is no rule as to handwritten signature.

Additionally, as e-commerce has raised during the last years, electronic acceptance of terms and conditions is becoming increasingly common.