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Lei 14.620/2023 and Loan Contracts of EFPC

22 de September de 2023
By João Marcelo B. L. M. Carvalho

On July 14, 2023, Law No. 14,620 came into effect, which, among other matters, amended the Code of Civil Procedure, including in Article 784, paragraph 4, a provision that states, “In electronically constituted or certified executive titles, any form of electronic signature provided for by law is allowed, and the signature of witnesses is not required when their integrity is verified by a signature provider.”

In the context of closed pension funds for private complementary retirement (EFPC), this issue is relevant because many of them act as lenders in loan contracts (mutual) they enter into with their participants. In these legal transactions, they seek to confer enforceability on the respective contractual instruments.

In this context, there has long been a debate about the enforceability of electronically concluded loan contracts by EFPC and their participants. In 2018, the Superior Court of Justice (STJ) issued a ruling in Special Appeal No. 1,495,920, recognizing the enforceability of an electronic loan contract signed by EFPC and its participant using a signature in compliance with the Brazilian Public Key Infrastructure (ICP-Brasil). The STJ held that, in such cases, witness signatures were dispensable to confer enforceability on the title.

It is important to clarify that the discussion we are referring to pertains not to the validity or effectiveness of the contractual instrument but to its enforceability—i.e., the ability of the instrument to, in the event of a dispute arising from non-payment, immediately lead to the execution of the debt without the need for a judgment phase in a court proceeding.

The inclusion of paragraph 4 in Article 784 of the Civil Procedure Code not only affirms the jurisprudential understanding but goes further. While the STJ mentioned the need for signatures with an ICP-Brasil certificate, the provision inserted into the CPC refers to the signatures of the parties in a way that their integrity is verified by a signature provider, without specifically mentioning the Brazilian Public Key Infrastructure.

In this regard, it seems evident to us that signatures in compliance with the ICP-Brasil standard meet the criteria established in paragraph 4 of Article 784 of the CPC. However, we must ask ourselves: can other forms of electronic signatures also be accepted?

We believe they can.

This is because if the legislator wanted to restrict the enforceability of electronic contracts to those concluded using a signature with the ICP-Brasil standard, it would have done so expressly, making reference to an “qualified electronic signature” as defined in Article 4 of Law No. 14,063/2020, which, in turn, provides for two other types of electronic signatures: “advanced” and “simple.”

However, instead of using the classification provided for in Law No. 14,063, the legislator, in the recent amendment to the CPC, was more inclusive and stated that instruments whose electronic signatures’ integrity is verified by a signature provider would qualify as extrajudicial executive titles.

Therefore, we understand that what will confer enforceability on electronic loan contracts entered into by EFPC with their participants will not necessarily be the use of a signature with the ICP-Brasil standard. The requirement chosen by the legislator was the existence of a signature provider that attests to its integrity.

https://www.editoraroncarati.com.br/v2/Colunistas/Joao-Marcelo-Carvalho/A-Lei-14-620-2023-e-os-contratos-de-emprestimos-das-EFPC.html

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