Brazil: Electronic Contracts and the New Civil Code

The advent of the New Brazilian Civil Code has raised hot debate as to the protection granted to electronic contracts, kind of agreement the has shown a considerable growth in times of Internet communication, and the need to expedite completion of deals.

Electronic contracts are, like conventional agreements, contracts where parties thereto express their will by establishing or extinguish a legal relationship.

The marking difference is that an electronic contract is made digitally rather than on a hard copy, as until very recently.

To date, Brazil has no specific legislation applicable to electronic contracts, even the New Civil Code lacks express provision on that kind of agreement.

The modernization of the Brazilian legislation, by the establishment of specific rules to govern deals made digitally is, undoubtedly, much anticipated. A Bill to govern issues including, but not limited to, e-commerce, data communication, e-mails, information systems and securities and contracts, among other relevant issues, is currently processing at the National Congress.

However, if electronic contracts, in order to be valid and enforceable, need to meet the same basic requirements as conventional contacts, we can, and should, the provisions on conventional contracts found in the old code and reworked and repeated in the new Civil Code continue to be applicable.

It is important to have in mind that, as far as contracts involving consumer relations are concerned, Brazil has one of the most modern and efficient legislation in world, the Consumer Protection Code, which will likely apply to e-commerce, irrespective of the support used to conclude a deal.

Further in relation to relationships established virtually, a few innovations and improvements can certainly been found in the New Civil Code, noticeably regarding the liability of administrators of companies performing, among other industries, in the digital sector, for losses they might cause to third parties.

In any event, both in the old and the new Civil Code, it is expressly provided that he who, by voluntary action or inaction, negligence or recklessness violates right and causes damage to third parties, will be required to redress it, by means of compensation.

Until specific legislation comes into force, the fight against spammers and those disclosing information on consumers that use the Internet for their shopping activities will have to be based on these provisions.