Belgian contract law is in principle relatively flexible, and allows private parties to conclude contracts using whatever means they deem appropriate (notwithstanding a series of formal restrictions for certain formal types of contracts). However, this flexibility also has its downsides: private parties are not always fully informed of the legal consequences of their agreements, and certain key information (including basic data such as the date of signing, entry into force, or even the exact identification of the parties) is sometimes missing, leading to needless discussions.
To alleviate some of these issues, a new lawwas adopted on 29 April 2013, introducing the lawyer’s deed (advocatenakte - acte d'avocat) into Belgian law. The law, which follows an earlier example set by the French legislature in 2011, allows the lawyers of the parties to a deed to co-sign it, thus confirming the agreement of their client, the date of the document and the authenticity of their signatures, and affirming that they have duly informed the clients of the legal impact of the document. The lawyer’s deed will have evidentiary value between the parties and their successors.
The law is particularly interesting because it contains explicit provisions that allow the creation of electronic lawyer’s deeds: Article 4 states that each party with a separate legal interest needs to be represented by a separate co-signing lawyer, resulting in as many deeds as there are such parties. The exception is when electronic deeds are used: in this case, a single original document is adequate, provided that it is signed by all lawyers using an electronic signature meeting the requirements of Article 4 §4 of the eSignatures Act, i.e. a so-called qualified signature, such as those created using the Belgian eID card.
The provision is however slightly ambiguous: while it suggests that only qualified e-signatures would be acceptable – thus ruling out alternative implementations that use different types of signatures – it actually only states that this requirement affects the number of documents required. That could leave open the option of technical solutions that use other types of signatures, provided that multiple electronic documents would be created. Parliamentary discussions did not touch upon this point.
The law was published in the Official Journal on 3 June 2013, and will enter into force on 13 June 2013. After that date, lawyer’s deeds – including electronic versions – are therefore available as a tool to citizens and businesses seeking to further secure their legal agreements.