Digital Economy Blog – Electronic contracts in Morocco

2023-07-22 16:03:16

Electronic means can be used to make contractual offers or information on goods or services available to the public with a view to concluding a contract.

As such, electronic contracts must obey several conditions for their validity but above all to give them probative value.

Deeds concluded online can also be signed online by means of electronic signature.

Contracts concluded physically or online in electronic form have the same conditions of validity. The contract concluded online is considered a regular contract, as long as an offer and an acceptance are combined.

The distance selling contract by electronic means is valid if it has been concluded in accordance with the conditions of the electronic signature.1

For the electronic contract to be validly concluded, the recipient of the offer (the buyer) must have had the opportunity to check the details of his order and its total price and to correct any errors, before confirming the said order to express his acceptance. The author of the offer must acknowledge receipt, without undue delay and electronically, of the acceptance of the offer sent to him. The recipient is irrevocably bound to the offer upon receipt.2

Information intended for professionals can be sent to them by electronic mail (email), once they have communicated their electronic address.

When a writing is required for the validity of a legal act, it can be established and kept in electronic form.

Writing on electronic medium has the same probative force as writing on paper.

Writing in electronic form is admissible in evidence in the same way as writing on paper, provided that:

– the person from whom it emanates can be duly identified,

– and that it is drawn up and stored in conditions that guarantee its integrity.

Copies of a legal act drawn up in electronic form are admitted as evidence when the process for keeping the act allows each party to have a copy or to have access to it.

Literal proof results from an authentic deed or a private deed (also known as a private deed).

The signature necessary for the perfection of a legal act identifies the person who affixes it and expresses his consent to the obligations arising from this act.

The reliability of an electronic signature process is presumed, until proven otherwise, when this process implements a secure electronic signature. signature

An electronic signature is considered secure when the following two conditions are met:

1. the identity of the signatory must be assured, and
2. the integrity of the legal act must be guaranteed.

The secure electronic signature must meet the following conditions:

1. be specific to the signatory;
2. be created by means that the signatory can keep under its exclusive control;

3. guarantee with the act to which it is attached a link such that any subsequent modification of said act is detectable.

Any act to which a secure electronic signature is affixed and which is timestamped has the same probative force as the act whose signature is legalized and of certain date.

The authentic deed is one that has been received with the required solemnities by public officers (for example notaries) having the right to act in the place where the deed was drawn up.

When the signature is affixed in front of a public officer authorized to certify, it confers authenticity on the act.

When it is electronic, it is advisable to use a reliable process of identification guaranteeing its link with the act to which it is attached.

The electronic signature must be produced by an electronic signature creation device, attested by a certificate of conformity.

The electronic signature creation device consists of hardware and/or software intended to implement the electronic signature creation data, comprising the distinctive elements characterizing the signatory, such as the private cryptographic key, used by him to create an electronic signature.

The certificate of conformity is issued by the national electronic certification approval and monitoring authority,3 when the electronic signature creation device meets the following requirements:

1. guarantee by appropriate technical means and procedures that the electronic signature creation data:
   1. cannot be established more than once and that their confidentiality is ensured;
   2. cannot be found by deduction and that the electronic signature is protected against any falsification;
   3. can be satisfactorily protected by the signatory against any use by third parties.
2. not lead to any alteration or modification of the content of the document to be signed and not prevent the signatory from having exact knowledge of it before signing it.

In the legal sense, the provision of cryptography consists of any operation aimed at the use, on behalf of others, of means of cryptography.

Means of cryptography means any hardware and/or software designed or modified to transform data, whether information, signals or symbols, using secret conventions or to perform the opposite operation, with or without a secret convention.

The purpose of the cryptographic means is in particular to guarantee the security of the exchange and/or storage of legal data by electronic means, in a manner which makes it possible to ensure their confidentiality, their authentication and the control of their integrity.

The use of cryptography means or services are subject to:

1. with prior declaration, when this means or this service has the sole purpose of authenticating a transmission or ensuring the completeness of the data transmitted electronically;

1. with prior authorization from the administration, when it is for another purpose.

Any person who has imported, exported, provided, exploited or used one of the means or a service of cryptography without the declaration or the required authorization, will be punished by one year of imprisonment and a fine of 100,000 dirhams.

1 Article 27 of Law No. 31-08 enacting consumer protection measures, promulgated by Dahir No. 1-11-03 of February 18, 2011 and published in Official Bulletin No. 5932 of 04/07/2011.
2 Article 65-5 of the Dahir forming the code of obligations and contracts.

3 This authority is created by Article 15 of Law No. 53-05 on the electronic exchange of legal data, promulgated by Dahir No. 1-07-129 of 30 November 2007 and published in Official Bulletin No. 5584 of 06/12/2007.

Author: Bruno Polizzi Master II Electronic Commerce Unistra/EdgeCasablanca, Morocco

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