eSignature Legality in Guatemala

eSignature Legality Summary

Under Guatemalan law, as a general rule, a written signature is not necessarily required for a valid contract - contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document (Article 1574 of the Guatemalan Civil Code and Article 5 of the Recognition of Electronic Communications and Signatures Law (ECS Law)). The ECS Law specifically confirms that contracts cannot be denied enforceability merely because they are concluded electronically. To prove a valid contract, parties sometimes have to present evidence in court. Leading digital transaction management solutions can provide electronic records that are admissible in evidence under Article 11 of the ECS Law, to support the existence, authenticity and valid acceptance of a contract.

Use Cases for Standard Electronic Signatures (SES)

Use cases where an SES is typically appropriate include:

• commercial agreements between corporate entities including NDAs, procurement documents, sales agreements, and service agreements

• consumer agreements including new retail account opening documents

• lease agreements, if not required to be registered

• credit agreements

• purchase agreements not related to real property

• deposit agreements

• construction agreements

• supply agreements

• transportation agreements

• licensing agreements

• rooming accommodation agreements

Use Cases That Are Not Typically Appropriate for Electronic Signatures or Digital Transaction Management

Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.

• Notarization - change of legal name (Art. 16 Civil Code)

• Notarization - articles of incorporation of civil association such as NGOs or foundations (Art. 20 Civil Code)

• Notarization - pre-nuptial agreements (“Capitulaciones Matrimoniales”, in Spanish) (Art. 119 Civil Code)

• Notarization - marital union (Art. 174 Civil Code)

• Notarization - marriage (Art. 93 Civil Code)

• Notarization - contracts related to real property (Art. 1130 Civil Code)

• Notarization - promise to purchase real property (Art. 1680 Civil Code)

• Notarization - contracts of surety (Art. 49 Notarial Code; Art. 50 Notarial Code; Art. 2101 Civil Code)

• Notarization - certain contracts governed by the law of civil succession, such as donation mortis causa or will (Arts. 955 Civil Code)

• Notarization - the articles of incorporation of a company (Article 16 Commercial Code and Articles 46-49 Notarial Code)

• Notarization - trust agreements (Art. 771 Commercial Code)

• Notarization - powers of Attorney (Art. 1687 Civil Code). There are some exceptions to this rule

• Notarization - annuity contracts (Art. 2122 Civil Code)

• Notarization - release contract (Art. 2169 Civil Code)

• Notarization - employment contract (Art. 28 Labor Code)

[1] An “advanced electronic signature” is an electronic signature that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it allows the identification of the signatory; (c) it is created using means that the signatory can maintain under his or her exclusive control; (d) it is linked to the data to which it relates to in such a manner that any subsequent change of the data is detectable.