CORRESPONDENCE BY E-MAIL IN BUSINESS RELATIONS: AN IMPORTANT NEW JUDICIAL PRACTICE

Recently, the decision of the Court of Cassation of the Supreme Court of Ukraine in case No. 922/788/19 of December 28, 2019, which, in our opinion, will have a serious impact on commercial relations in Ukraine, appeared in the public domain. In this ruling, the court, agreeing with the positions of the courts of the previous instances, indicated that electronic correspondence could not be considered proper written evidence.
The fact is that the local economic court established that the electronic document circulation procedure was not introduced between the parties to the agreement, and the defendant sent informational messages on fulfilling the terms of the agreement without observing the requirements for the availability of the mandatory details of the electronic document and without being certified with its electronic signature. Therefore, the screenshots of letters provided by the defendant are not appropriate written electronic evidence in support of the legal position in the case.
In turn, the court of appeal concluded that electronic correspondence between the parties cannot be accepted as evidence, given that, in accordance with the law, a change in the terms of the contract must be made in the same form in which the contract was concluded, which is being amended .
In the final decision in this case, the Supreme Court focuses on the fact that a printout of electronic correspondence cannot be considered an electronic document (copies of electronic documents) within the meaning of 5 Law of Ukraine "On electronic documents and electronic document management", according to which an electronic document is a document, the information in which is recorded in the form of electronic data, including the mandatory details of the document. The norms of the said law also establish that an electronic signature is a mandatory requisite of an electronic document and is used to identify the author and / or sign the electronic document by another subject of electronic document management. An electronic signature completes the creation of an electronic document.
Bearing in mind the foregoing, we would like to warn you against using regular electronic correspondence in particularly important commercial transactions.