The Third Panel of the Brazilian Superior Court of Justice (STJ) issued a relevant decision by recognizing, by majority vote, the enforceability of an electronically executed and digitally signed loan agreement, even in the absence of two witnesses — a requirement traditionally imposed by the Brazilian Code of Civil Procedure for extrajudicial enforcement.
The matter was addressed in Special Appeal No. 1,495,920/DF, which examined whether electronic contracts certified through digital authentication mechanisms could be enforced directly. According to the prevailing opinion, digital certification and verification systems may, in specific cases, fulfill the role traditionally assigned to witnesses, in light of the current dynamics of commercial transactions.
The decision, however, was not unanimous. Dissenting opinions raised concerns regarding the limits of judicial interpretation and the potential risks to legal certainty arising from the expansion of statutory categories of enforceable instruments without explicit legislative authorization.
The ruling highlights the challenges faced by procedural law in adapting to increasingly digital contractual practices, while also underscoring the lack of uniform case law on the matter. Until binding precedent is established or legislative reform is enacted, the enforcement of electronic contracts without witnesses should be approached with caution, given the procedural and economic risks involved.
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