How to (electronically) sign contracts correctly

Written by

Dominik Lusti

2.9.2024

Have you ever scanned and emailed a contract after you've signed it? Or perhaps inserted a scan of your signature into a Word document? In the digital age, concluding contracts has become much easier. But are the contracts that are concluded in this way also legally binding?

In Lex Futura's latest blog post, you can find out everything you need to know about signing contracts electronically. We also provide you with helpful tools to help you choose the right type and tool for your electronic signature.

1 In a Nutshell

In principle, contracts can be concluded in any form as long as the law does not stipulate otherwise. In day-to-day business, however, it is often agreed that a contract can only be concluded or amended in writing. If it is not specified what is meant by "in writing", only a handwritten signature or a so-called qualified electronic signature is generally sufficient to validly conclude the contract. Whether other types of signature are also permissible is controversial and should therefore be expressly stipulated in the contract. You can find out how to proceed so that you are on the safe side legally in our guide below.

2 Basics

Freedom of form

In Swiss contract law, freedom of form applies in principle. This means that contracts may be concluded in any conceivable form. A legally binding contract is therefore not only created when you sign a written agreement. Contracts can also be concluded verbally and even tacitly. For example, you can conclude a contract in the supermarket by placing the goods on the conveyor belt and then paying for them. Not saying a single word during this transaction may be rude, but it has no effect on the legal validity of the purchase contract. In principle, contracts can also be concluded by email or WhatsApp. However, the law expressly stipulates that certain legal transactions must be concluded in a certain form. These formal requirements serve to increase the probative value of important legal transactions. In part, however, they are also intended to prevent people from frivolously committing themselves to something that they may not even want. For example, a promise to gift something to someone is only legally binding if it is made in writing.

Types of formal requirements

The law recognizes different "levels" of formal requirements. The weakest version is the simple written form. To conclude a contract that meets the simple written form requirement, you must set out the essential terms of the contract in writing and then sign it by hand. In addition, there is also the qualified written form and the public notarization. These two types of formal requirements place even higher demands on the conclusion of the contract. They can therefore not be concluded in electronic form. Typical examples of legal transactions that are subject to a statutory formal requirement are a will, the purchase of real estate, a guarantee and the assignment of claims.

Contractual formal requirements

Contracting parties often agree that a contract should be concluded "in writing" or "in written form". Especially in day-to-day business, it makes sense to record the agreements concluded in writing. In most cases, however, the parties are not even aware of the legal consequences. If they do not themselves define what "in writing" means, the contract must meet the requirements of simple written form in accordance with the law (OR 16 II). In principle, the contract would therefore have to be signed by hand in order to be valid. This excludes (almost) all forms of digital signature.

If the contract is not subject to any special formal requirements, it can in principle also be concluded digitally in any conceivable form. It is therefore sufficient to exchange a scan of the signed contract, sign the PDF with docusign or agree by text message. The contracting parties can agree among themselves what requirements they want to place on the signature. But what applies in the digital space if there is a legal formal requirement or if it has been agreed that the contract should be concluded in writing?

3 Types of electronic signature

Email, Whatsapp, SMS

If there is a legal requirement for a contract to be in writing or if it has been agreed that it can only be concluded in writing, it can no longer be concluded by text message. In these cases, it is therefore not sufficient to simply agree via WhatsApp/SMS or email. There is an important exception to this rule in business transactions. If a written form requirement is agreed in day-to-day business without this being required by law, it can generally be assumed that confirmation by email (but not by WhatsApp or SMS) is sufficient. However, to be on the safe side, we recommend that you expressly state in the contract that the contract can also be concluded by email.

PDF and image files

It is disputed whether the delivery of a PDF or image file of a signed contract fulfills the written form requirement. To be on the safe side, we therefore recommend expressly stating in the contract that this is permissible. In addition, you should refrain from using this option if there is a statutory written form requirement. It is also unclear whether it is sufficient to insert an image or scan of a signature in an electronic file. Until there is court practice on this point, we therefore recommend that you do not sign contracts in this way. However, if there are no legal formal requirements, you can expressly agree in the contract that this type of signature is valid.

Simple electronic signature

There are now a large number of companies that offer tools for signing contracts electronically. With products such as Skribble or docusign, you can sign contracts electronically without having to print out, sign and then scan the document every time. These programs also offer increased probative value. However, they are not equivalent to the legal form of simple written form. The so-called simple electronic signature (EES) can therefore only be used if there is no formal requirement. If you have agreed that the contract is to be concluded in writing, you must expressly state that signing by EES is permitted.

Statutory electronic signatures

Since 2016, electronic signatures have been regulated by law in the ZertES. On the one hand, the law provides for the advanced electronic signature (FES). In contrast to the EES, this form of signature is bound to certain minimum legal standards. The FES therefore generally offers increased security compared to the EES. However, the FES is also not sufficient if the contract is to be signed in writing (unless this has been expressly agreed and there is no statutory form requirement). The only electronic signature that is equivalent to the simple written form is the qualified electronic signature (QES). This can also be used to conclude contracts for which the written form is required by law. In addition, you do not have to expressly state that the contract can be concluded by QES if you agree that it should be in writing. However, there are currently only four approved providers for QES in Switzerland (list of approved providers) and very few people in day-to-day business have the option of signing with QES.

4 How to (electronically) sign contracts - a guide

Type of signature

Regardless of whether you want to sign your contracts electronically or by hand, it is important that you choose a suitable form for your company. When signing contracts, there is often a trade-off between the cost and time required for a signature on the one hand and the legal security offered by the chosen form on the other. To ensure that you don't waste any resources but are still legally protected, we recommend considering a combination of criteria. Important factors are, for example, the complexity of the contractual relationship and the relationship between the contracting parties. However, the term of the contract and the existing time pressure should also be taken into account.

Decision aid

To make it easier for you to choose, we provide you with our decision aid. You can use this to easily determine which type of signing is suitable for your situation.

The right tool

Once you have decided on a digital signature, you need to choose the right tool. You should consider the following aspects:

Price and frequency of billing;
Availability in the relevant countries;
Location of hosting (some companies insist on hosting in Switzerland or the EU);
Security;
Tools already available for the contracting parties.

To help you make an informed decision, we provide you with our overview of the most common tools for digital contract signing.

The right contract clause

Once you have decided on a type of signature and a suitable tool, it is important that you formulate the contract correctly. With the help of our templates, you can put together the right contract clause in three simple steps. In Step A, you will find various standard clauses to determine the written form for your contract. In Step B, you can define which types of signature should fulfill the written form requirement. In Step C, you can add specific provisions, for example you can determine the language or specify the contact addresses of the contracting parties.