Name
Global FinTech Guide
Country _ Name
Romania
SectionTitle
Signature requirements
Body
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

The Romanian law provides for different legal requirements with respect to expressing the consent (the declaration of intention) of a party depending on the type of agreement which the parties intend to conclude. 

As a general rule, the Romanian Civil Code provides that:

  • the consent can be expressed either verbally, or in writing; and
  • the simple agreement between the parties is sufficient for a contract to be concluded if the law does not impose a specific form for its valid conclusion.

The law also provides that the consent can also be expressed through a behaviour which, according to the law, the convention of the parties or their usual course of business, leaves no doubt with respect to the intention of the party to produce legal effects.

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

There are specific requirements to effectively conclude a loan agreement, depending on the type of loan agreement which the parties intend to conclude:

  • the loans granted to consumers and not secured with real estate mortgages or related to real estate assets must be expressed in writing. This condition does not necessarily mean that the agreement must be signed in “wet ink”, but only that the terms and conditions of the agreement must be recorded in writing on any type of durable medium (i.e., it cannot be represented by a simple verbal agreement);
  • the loans granted to consumers and secured with real estate mortgages or related to real estate assets must be concluded at the headquarters of the credit or financial institution which is granting the loan. Moreover, the real estate mortgage must be concluded in front of a notary public. Although the law provides for the possibility of notaries to notarise/authenticate agreements electronically, from our experience, this solution has not yet been utilised by notaries;
  • the loans granted to corporate entities do not provide for any specific formal requirements for their effective conclusion.
     

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

Regulation (EU) no. 910/2014 on electronic identification and trust services for electronic transactions in the internal market is directly applicable in Romania. This provides that a qualified electronic signature will have the equivalent legal effect of a handwritten signature. The agreements can be concluded by exchanging the pdf-document by e-mail and each party applying its qualified electronic signature on the document.

In Romania, there are currently five trust service providers (vendors) which can issue qualified electronic signatures. The trust service providers require a license in order to provide services. The Ministry of Communication and Information Society is the Romanian supervisory body which has the authority to issue qualified electronic signatures.

Conclusion of an electronic contract that has to match with specific formal requirements is convenient in the country.

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

The legal consequences of not fulfilling formal requirements depend on the requirements for each type of agreement. The Romanian law generally splits the requirements into: (i) validity requirements; and (ii) proof/evidence requirements.

If an agreement does not fulfil the validity requirements provided by the law for its conclusion, it is considered null.
If an agreement does not fulfil the proof/evidence requirements provided by the law, this does not lead to the agreement being considered null, however, in case of a litigation, submitting the agreement by itself to the court will not be sufficient for evidencing its conclusion. The document could represent a part of the evidence, however more elements should be provided to the court as proof of the conclusion of the agreement.

Usual practice of signing contractual agreements in the B2B sector

With respect to transactions having a significant value, the preferred method of concluding agreements in Romania in the B2B sector is still considered to be the hard copy agreement (signed in “wet ink”). If this is not possible, the parties are generally comfortable with a signing in counterparts, where scanned signatures are circulated over e-mail (not qualified electronic signatures, but merely a scan copy of the signed agreement). This must always be followed by the exchange of hard copy originals between the parties.

Due to the pandemic restrictions, the process of adoption of the electronic signature was accelerated and the electronic signature has now been adopted on a large scale by corporate entities in Romania. Nevertheless, the fact that Romanian law requires the qualified electronic signature for most of the agreements (when the signature represents a validity requirement) this still poses certain impediments to a wider use of electronic agreements in Romania. 

Usual practice of signing contractual agreements in the B2C sector

The B2C sector in Romania prefers the handwritten signature, especially for reasons regarding potential litigations. This is, however, applicable mainly for agreements with a significant value (such as a security agreements). With respect to day-to-day services, such as telephonic/communications agreements, the parties are also using electronic methods of conclusion, such as accepting the terms through a website or over e-mail. This type of low-value agreements are also being concluded over the phone (followed up by the written version being sent over e-mail).

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