The closing is a key step in any commercial transaction. Concretely, it is the moment of signing on paper deeds of transfer requiring the meeting of all the protagonists: seller (s), buyer (s), and their advisers.
The closing allows the completion of the sale and follows the signing, characterized by the signing of the agreement to transfer the business and by the final commitment of the parties. It therefore supposes the gathering in the same place of many protagonists led to manually sign the documents formalizing their agreement. But at a time of digitalization and the development of new technologies, the progress of this operation raises various questions.
Closing is the last step in a commercial transaction process. It corresponds to the execution of the contract and the actual completion of the sale or acquisition of a business and implies the signing of numerous documents. This crucial stage gives rise to a certain number of technical constraints such as the need to bring together in one place parties residing and potentially working in very distant places, in particular in the case of operations of an international nature, and that of blocking a date for all of them and to carry out the displacement, which can be problematic in normal times and a fortiori in the current context of the health crisis. Gold, does digitalization not make this approach outdated? It appears that new technologies offer an answer to this difficulty and could in the future allow the material simplification of the closing processes.
The emergence of the electronic signature
In recent years, electronic signature systems have developed. They allow you to sign documents remotely while retaining the legal value of handwritten signatures. Since Law No. 2000-230 of March 13, 2000 adapting the law of evidence to information technology and relating to the electronic signature, it has the same value as a handwritten signature.
The assembly of the documentation, the printing of documents of a hundred pages in several copies, to initial and sign by the stakeholders, as well as the mailing of these documents, represent as many stages of the closing as dematerialization could simplify.
During a closing procedure, the use of the electronic signature will facilitate the sending and exchange of documents to all stakeholders, by securing the data which will be dematerialized. This process improves the productivity of all stakeholders both during the preparation of documentation and when signing numerous acts in multiple copies, thanks to better management of files. The dematerialization of the closing generates a saving of time for all the parties who will not necessarily need to meet in the same place at the same time. It can also be an essential tool for concluding remote operations in the context of the current health crisis.
However, unlike the handwritten signature, the electronic signature does not allow to be attributed to a given person, which leads each user to have to establish with certainty the identity of his correspondents. The use of this process for the conclusion of contracts therefore requires that the parties ensure that a signature belongs to a person, which goes through a specific procedure .
A real legal framework should be respected in the case of digitization projects. Thus, the European regulation Electronic Identification and Authentication Services (eIDAS) in force since July 2016 fixes the rules of use and legal recognition of the procedures of electronic signature of the member countries of the European Union, and establishes a legal framework for the use of trust services for electronic transactions. The trust service is an electronic service – normally provided for a fee – which consists of the creation, verification and validation of electronic signatures. This service will be provided by a natural or legal person as a qualified trust service provider.
This European regulation aims to increase confidence in electronic transactions carried out within the internal market. It aims to promote the development of a digital trust market by establishing a mechanism for mutual recognition of the electronic identification means of the Member States on all the online services of the other Member States .
At the national level, this electronic signature process is governed by article 1316-4 paragraph 2 of the Civil Code according to which “When it is electronic, (signature) consists in the use of a reliable identification process guaranteeing its link with the act to which it is attached. The reliability of this process is presumed, until proof to the contrary, when the electronic signature is created, the identity of the signatory ensured and the integrity of the act guaranteed, under conditions fixed by decree of the Council of State ”. In addition, articles 1366 and 1367 of the Civil Code establish the probative force of the electronic signature if it meets the criteria for identifying its author.
In France, it is the National Agency for Information Systems Security which is the referent body for electronic signatures. Its role is to identify and control trusted service providers to ensure their compliance with the eIDAS regulations. Several tools meet the conditions of the European regulation and appear in the list of trusted providers. Yousign or Docusign offer these services.
While the use of these methods seems destined to be more and more widespread, the health crisis that we are going through and the periods of confinement to which many countries are subject could well demonstrate even more the attractions of such mechanisms.
An ecological observation
Another question relates to the massive use of paper during closings. Indeed, at the time of digitalization and the fight against pollution and for the ecology, such a massive use may seem paradoxical. Could digitization provide an answer to this paradox? To what extent could all the documentation be covered? Is the use of paper a simple tradition among lawyers or does it contribute to the legal value of documentation?
Although new technologies aim to reduce or even eliminate the massive use of paper, businesses and law firms continue to depend heavily on it. However, the disadvantages are numerous: the search for information can prove to be longer and thus be counterproductive; this use is more expensive and has a negative impact on the environment. Indeed, paper represents 75% of office waste and each employee consumes 70 to 85 kg of paper annually .
The advantages of dematerialization are numerous. The generalization of this would not only reduce operating costs, but also centralize and promote the digital storage of information. This dematerialization will make it easier and faster to share data while providing a more secure environment.
In addition, the use of the electronic signature makes it possible to send documents to stakeholders by avoiding the printing of hundreds of documents and numerous postal items The generalization of dematerialization would therefore have a major positive ecological impact.
In conclusion, beyond the direct concrete simplification of the closings process, digitalization is increasingly becoming a response to various current challenges. Both European and French legislation have taken note of this state of affairs via the framework for electronic signature procedures. Faced with the ecological issue in particular, digitalization seems to provide a simple and effective response, which could make a difference in the future in preserving the environment. The Covid 19 health crisis, by the concrete obstacles it poses to the meeting in one place of the parties to the transactions, could well, for its part, be a trigger in the generalization of digital procedures.
