1. Introduction

In Turkey, signing contracts with a basic or secure electronic signature is an important issue. This topic should be evaluated with the provisions of the Electronic Signature Law No. 5070 (“Law”), along with the Civil Procedure Law (“CPL”).

In Turkish Law, there is no form required for the validity of contracts, except for some contracts (e.g. sale of real estate, personal bail, etc.). Therefore, when there is no special form requirement, it will be possible to sign contracts with an electronic signature. However, the problem may arise if proof of the existence of the contract is required.

Namely; in terms of contracts that exceed a certain amount (this amount is 6,646.56 TL for 2022) under the CPL, a promissory note is required for the proof of these transactions and these legal transactions cannot be proved by witnesses. Documents that will be accepted as promissory notes within the scope of the CPL are (i) ordinary written promissory notes and (ii) electronic data duly signed with a secure electronic signature.

While the contrary of the claims depending on a promissory note cannot be proved by witness statements, the contrary of the commencement of evidence can be proved by witness statements. In cases where there is an obligation to prove a transaction with a promissory note, if there is also the commencement of evidence, it may be decided by the court to hear witnesses.

In this context, a distinction is made between electronic signatures as secure or basic. As a result of this distinction, a secure electronic signature is accepted as conclusive evidence in accordance with CPL, while contracts signed with a basic electronic signature do not constitute conclusive evidence, they can constitute commencement of evidence. Under Article 202 of the CPL, the commencement of evidence is a document given or sent by the person or his/her representative, which is not sufficient to fully prove the legal act subject to the claim but shows the legal act in question as probable.

2. Distinction Between Secure Electronic Signature and Basic Electronic Signature

In the Law, secure electronic signature is defined as an a signature which;

(a) is connected exclusively to the signatory;

(b) is generated by a tool to create a secure electronic signature only at the discretion of the signatory;

(c) allows for the detection of the signatory through a digital certificate*; and

(d) allows for the detection of any subsequent changes to the signed electronic data.”

*The qualified electronic certificate required to use a secure electronic signature in Turkey is available only at the institutions specified in the following link (in Turkish): https://www.btk.gov.tr/elektronik-sertifika-hizmet-saglayicilari

In light of the above, secure electronic signatures in Turkey are granted by the digital certificate providers authorized by the Turkish Government.

Any other electronic signature that does not meet the above conditions (e.g. signatures via docusign, PDF, email, etc.) will be deemed as a basic electronic signature.

3. Conclusion

Given the light of the above, since basic electronic signatures do not constitute conclusive evidence, they may pose a problem in terms of proving the contract. However, a secure electronic signature has the same legal effect as a wet signature.

As a result, a contract signed with a basic electronic signature will be considered valid unless it is a contract that is subject to a special form required per Turkish law. However, when proof of this contract or a provision in the contract is required, additional evidence might be required to minimize the risk of not proving the contract/provision, unlike secure electronic signature.

Behiç Ateş Gülenç
Associate | [email protected]