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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

In Colombia, it is not mandatory that contracts be in writing, it is a simple formality that has more of an evidentiary purpose, that will be important if the parties to the contract should fail to comply with the agreement.  There are certain contracts that the law requires to be elevated to public deed and in that case, it would be very difficult to replace the requirement by some other more updated to our time.

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

Contracts are obligations that arise from the free will of the parties, and this is evidenced in Articles 1,254 to 1,260 of the Civil Code, which establish the general provisions thereof. According to article 1261 of the Colombian Civil Code, three (3) elements are essential requirements for the existence of a contract:

  • Consent: it is the agreement of wills on the subject matter of the contract that is manifested by the contest of the offer and the acceptance. Consent and the capacity to give it.
  • The certain object that is the subject matter of the contract. The object of the contract is not so much the agreed performance, which is identified with the object of the obligation that is created, modified, or extinguished by the contract, but rather a good susceptible of valuation that corresponds to an interest of the contracting parties.
  • The cause of the contract refers to the legal cause of the contract and not to the personal motive of each of the contracting parties to enter into the legal transaction. It is one (1) of the elements without which the contract is null and void. It must be a lawful cause and not a false one.
From the point of view of the Colombian legislation, the signature is not one of the essential requirements for a valid agreement of wills, it is more something that we have as a formalism that custom has imposed in our lives. The signature is an indication that what has been agreed is endorsed and subscribed by the person who in fact signs the document, but since it is not an essential element of the contract, it can be substituted by some other mechanism that corroborates the identity of the person who signs the document.

In Colombian law there is no requirement other than the three (3) already mentioned for an agreement to be valid.  However, it is a custom and a formalism that contracts of this type are written, since they usually include a covenant of interests that would be useful to the creditor, and therefore it is customary that contracts are written and signed.

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

Identification services are regulated by Law 527 of 1999, regulated by Decree 19 of 2012, Article 160, which was in turn regulated by Decree 333 of 2014. For the electronic signature, an authorization is required. Such authorisation shall be issued by the National Accreditation Organism (Organismo Nacional de Acreditación) to public or private legal entities.  The above rule was declared in accordance with Colombia's constitutional guidelines in Ruling 219 of 2015.

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

It will not be valid; the obligation has not come into existence and therefore will not be enforceable.

Usual practice of signing contractual agreements in the B2B sector

These types of contracts are signed using a digital signature. This is the tool that allows you to sign an electronic document w
ith the same effects as a traditional signature; therefore, it is the electronic equivalent. The digital signature has a high level of security that guarantees the authenticity of the subscription and the ownership of the person signing, because it is contained in the digital administration code, the set of rules on IT documents and electronic signatures.

Usual practice of signing contractual agreements in the B2C sector

For the time being, these types of contracts are atypical, and in that order of ideas, we do not have a specific legislation that regulates their requirements. When such an event occurs, the general rules for the validity of contracts are used. In Colombia the contracts that by law must be elevated to public deed where the signature is compared with the signer of the document is the only situation where the signature is expressly required.



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