Written Form, electronic form, and document form in contracts – what are the differences?

Choosing the appropriate form for a legal action is a key issue in many legal situations, both in everyday life and in business.
In the Polish legal system, the following forms of legal actions are available:

•    written form,
  • electronic form, and
  • document form.

In practice, these forms are often mistakenly equated and confused with each other, which can lead to negative consequences. This is because failing to use the correct form can result in the legal action, such as a contract, being invalid.

This post explains the fundamental differences between the aforementioned forms of legal actions.

Written Form

The written form is certainly the oldest and most widespread way of concluding contracts. It is defined in Article 78 of the Civil Code, which states that the form involves placing a handwritten signature on a document that includes the content of the declaration of intent.

Although the law does not provide a legal definition of a signature, it is understood to be a graphic mark made by hand that allows for the identification of the person signing the declaration. Although the signature does not need to be legible, it should reflect distinctive features of the person making it and thus indicate their identity.

To conclude a contract in writing, it is sufficient to exchange documents containing the content of the declarations of intent, each signed by one party, or exchange documents where each contains the declaration of intent of one party, signed by them.

In practice, if the contracting parties cannot meet in person, the conclusion of a written contract may involve one party sending two signed copies of the contract to the other, who then signs them and returns one copy. This method is called circulation.

Electronic Form

The electronic form of concluding contracts is becoming increasingly popular.

To maintain this form, it is necessary to make a declaration of intent electronically and affix it with a qualified electronic signature.
It is often mistakenly assumed that submitting a declaration of intent via email constitutes an electronic form. However, it should be emphasized that only the use of a qualified electronic signature allows a document to be considered in electronic form, as per Article 78¹ of the Civil Code.

A declaration of intent made electronically is equivalent to one made in writing, as stated in Article 78¹ § 2 of the Civil Code.

Therefore, if a statute or legal act requires a written form for the validity of a legal action, submitting declarations of intent electronically (i.e., through the exchange of electronic documents signed with qualified electronic signatures) will be sufficient. It is also permissible for one party to submit their declaration in writing, while the other party submits it electronically.

Document Form

As noted, the document form is often mistakenly equated with the other two forms of legal actions.

According to Article 77² of the Civil Code, to preserve the document form of a legal action, it is sufficient to make a declaration of intent in the form of a document that allows for identifying the person making the declaration.
Article 77³ of the Civil Code defines a document as a medium of information that allows the recipient to access its content.
This means that a declaration of intent in the document form can be made through methods like sending an email, a scanned document, a photo, or even an audio or video recording, as long as the method allows identifying the person making the declaration.

Thus, the document form is not equivalent to the written form or the electronic form, which require, respectively, a handwritten signature or a qualified electronic signature.

Consequences of failing to follow the required form

If a statute requires a legal action to be performed in written, document, or electronic form under pain of nullity, failing to observe the required form when concluding the contract will result in its invalidity. Similarly, when the parties stipulate one of these forms for the validity of a legal action.

It should also be noted that any amendments or additions to a contract require observing the form that the law or the parties have stipulated for its conclusion.

In cases where a statute or the parties have stipulated the form of the legal action without specifying the consequences for failing to observe it, the form is considered to be required only for evidentiary purposes.

Understanding the differences between written, electronic, and document forms is crucial in business transactions. When concluding a contract or making amendments to it, it is worth seeking legal assistance to eliminate potential risks and negative consequences that may arise from not observing the correct form.