Electronic Signatures, Electronic Documents, and Real Guarantees

Reflections on the Feasibility of Establishing Real Estate Guarantees by Electronic Means in Light of Portuguese Law

Abstract

E-commerce has been used by the European legislator as a mechanism to realize the common market. However, regarding the free movement of capital (notably in its dimension of access to real estate guarantees), most European countries still follow Latin notarial rules, which require the acquisition of real rights over real estate to be formalized through declarations of will embodied in a public document. It is important to determine whether, under Portuguese law, the public document itself (or the authenticated private document) can be issued in electronic form: if so, this would open the door to real estate transactions concluded between absent (and unknown) parties, fostering the creation of a European market for real estate guarantees.