Contract concluded by email or social media – is it valid?

This naturally raises the question: is such an agreement legally binding in Poland? The answer is: yes, in many cases such agreements can be valid and enforceable. However, it is important to bear in mind the exceptions where the law requires a specific form to be followed.

Legal basis – freedom of form in concluding contracts

The legal basis enabling the conclusion of contracts in the digital world is the principle of freedom of form set out in Article 60 of the Civil Code. This provision states that a declaration of intent may be made in any manner that reveals the intention to conclude a contract, including in electronic form. This means that arrangements made via email, text message or on social media may be legally binding if the parties can be identified, the content of the contract contains all essential elements, and each party expresses their intention to conclude it.

Documentary form – the foundation of digital contracts

Of key importance in electronic commerce is the documentary form, regulated by Article 77² of the Civil Code. This entails that the content of a declaration of intent is recorded in a manner allowing it to be reproduced later, whilst it is also possible to determine who made the declaration. In practice, this means that both emails and correspondence conducted via instant messaging services can be treated as valid declarations of intent in documentary form. Importantly, this form does not require a signature, which distinguishes it from the written form and makes it better suited to the needs of modern business communication.

However, ordinary electronic correspondence will not always suffice. In certain situations, the legislator has stipulated the obligation to observe a specific form – written, electronic with the use of a qualified electronic signature, or even a notarial deed.

This is the case, for example, with the sale of property, which requires a notarial deed, or with the transfer of economic copyright or an occasional tenancy agreement, where the written form is essential on pain of nullity. In such cases, an email or chat message will not suffice, and failure to comply with the required form renders the contract void.

Contracts concluded electronically – case law

As indicated by case law, the conclusion of a contract via email or a message in an instant messaging service may constitute a valid declaration of intent in documentary form. The Regional Court in Gliwice (case no. III Ca 1062/20) ruled that sending an email from an account assigned to a specific person, containing a declaration of the conclusion of a contract, is sufficient to satisfy the documentary form requirement.

“The legal consequences of the prescribed documentary form are as follows. Where the law stipulates that legal acts must be in written, documentary or electronic form, a legal act performed without the prescribed form is invalid only if the law provides for a penalty of invalidity (Article 73 § 1 of the Civil Code). If the law or the parties’ agreement does not provide for a penalty of nullity, a statement made in the form of a document (SMS, MMS, email, audio recording) in such a way that its sender can be identified has the same legal standing as a statement made and signed in writing.”

As the court indicates in the aforementioned judgment, a requirement in the provisions for written, documentary or electronic form without a penalty of nullity does not lead to the invalidation of the legal act itself in the event of non-compliance. It is primarily of procedural significance – this means that although the contract itself, concluded in another form, remains valid, in the event of a legal dispute there are evidential limitations – it is not permissible to rely on witness testimony or to examine the parties in order to confirm the fact of the conclusion of such a contract.

Risks and limitations of online contracts

However, concluding contracts online entails certain risks. If a particular transaction requires a specific form, failure to comply with this requirement renders the transaction invalid. Evidence-related issues can also be problematic – if the legislator requires a written, documentary or electronic form solely for evidential purposes, then in the event of a dispute, failure to comply with the required form limits the possibility of relying on evidence from witness testimony or the examination of the parties. Risks also arise in situations where electronic correspondence is imprecise and does not allow for an unambiguous determination that the parties have made consistent declarations of intent. Additionally, technical difficulties may arise, such as system errors, failure to deliver messages, or ambiguous confirmations of agreements.

From a practical point of view, it is worth remembering that, for the effectiveness and security of commercial transactions, it is advisable to formulate the content of agreements concluded online precisely and to retain all correspondence, which may later serve as evidence. In the case of more complex or high-value transactions, it is recommended to confirm the agreements in writing or by a notary. Increasingly, the use of a qualified electronic signature is also proving to be a beneficial solution, as it equates an electronic document with a traditionally signed paper document.

In summary, a contract concluded via email, instant messaging or social media in Poland may be valid and binding if it contains all essential elements, allows the identity of the parties to be established, and does not concern an act requiring a specific form. Digital communication is now a fully-fledged tool in legal and business dealings; however, for key transactions, it is advisable to additionally ensure that the agreement is in writing, either in electronic form with a qualified signature or notarised, in order to minimise the risk of disputes and ensure maximum legal certainty.

Author

Martyna Dobkowska

Associate

She specializes in civil, commercial and business law. In the corporate and energy department, her activities are mainly based on providing corporate services to companies, reviewing and preparing commercial contracts, drafting litigation and non-litigation pleadings and preparing analyses and legal opinions, particularly in the sphere of business law and energy law. She also has professional experience in administrative and civil proceedings, which she gained in Warsaw law firms. She supports the Firm's…

View profile →