E-commerce law in Brazil

Draft Law n. 4.906-A, filed by Senator Jader Barbalho, sent to the House of Representatives in 2001, intends to regulate the Electronic Commerce in Brazil. The lack of laws regarding this matter has not impeded negotiations through electronic communication. Even though, Brazil already counts with a developed doctrine and a few decisions grounded on others non-specific laws about agreements entered into on the E-Commerce. 

The Draft Law has received favorable technical reports to its approval and conversion into Law and is motivated by the legislation already in force regarding digital certification and on the action of the Government to the improvement of the information system in general. It shall be applied to agreements entered into by any kind of information sent by electronic ways and used in commerce, according to its Article 1. 

After defining the concept of electronic message, its sender and receptor, the Draft Law also highlights its intention to enable the internal and external Electronic Commerce, the enforcement of agreements and operations entered into by the parties through new information technology and also the promotion of a consolidated applicable law.

The Draft Law under its Article 5 recognizes the legal effects, the validity and the enforcement of information through electronic message. Its importance shall be reflected on other fields of Law, as, for example, e-mails may probably be used with no distinction as evidence in judgments.

The Draft Law also determinates that if any Law requires certain information in writing, this requirement will be fulfilled by the electronic message if the information contained on it is accessible in the future, according to Article 6. It also innovates establishing that if the signature of one of the parties on the document is required, an electronic message will be accepted, if a trustable and appropriated secure system is used - such as the electronic signature - identifying the person who sent the message and indicating his approval of the information on this message. 

Both offer and acceptance of agreements entered into by electronic messages shall be accepted as valid. Nevertheless, the Draft Law establishes a few considerations regarding the content of the messages and its receipt. It shall be presumed that the electronic message sent corresponds to the intention of the sender, except if the receptor knows, or should know, that the procedure of sending this message may have caused mistakes to its content.

Regarding the receipt of the message and its acknowledgement by the parties, the Draft Law determinates that the effects of the message may the conditioned by the parties to the receipt by sender of a note of receipt, and that a term to this note of receipt may be settled. For this reason, the message shall be considered not sent, if the notice is not receipt at all, or after the term. Nevertheless, the receipt of this note does not indicate that the electronic message correspond to the information sent.

Regarding the place and time of the receipt, which are very important to the liability of agreements, the Draft Law establishes that a message is considered sent and receipt on the premises of the sender and receptor, respectively, as well as the information is receipt at the moment it enters in the system of the receptor, or at the time the receptor brings the message off another system of information.

This Draft Law is still waiting for the approval of House of Representatives, with request of urgency on its analyses. After that, it shall be analyzed by the Senate and the President, before being in force.


By Gabriela Gomes

Member of Paulo Roberto Murray - Law Firm