Opinion of Hanfa on Concluding Leasing Agreements Electronically and the Concept of 'Agreement Concluded in Writing'

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OPINION OF HANFA ON CONCLUDING LEASING AGREEMENTS ELECTRONICALLY AND THE CONCEPT OF "AGREEMENT CONCLUDED IN WRITING"
I. INTRODUCTION
The Croatian Financial Services Supervisory Agency (hereinafter: Hanfa) received a request for the issuance of a legal opinion (hereinafter: Request) from a leasing company (hereinafter: Requestor), seeking a legal opinion regarding the application of the provision of Article 52, paragraph 5 of the Leasing Act (Official Gazette nos. 66/14 and 86/18).

II. DESCRIPTION OF THE REQUEST FOR OPINION
The Requestor, in relation to a leasing agreement, raises the question of whether an agreement concluded electronically (taking into account all regulations on e-signatures) constitutes an agreement in written form (only on a different medium, not on paper).

III. OPINION OF HANFA
Article 52, paragraph 5 of the Leasing Act stipulates that a leasing agreement must be concluded in written form.

Article 53 of the Leasing Act explicitly indicates the application of the provisions of the Obligations Act, unless otherwise provided by the provisions of the Leasing Act.

Article 5, paragraph 2 of the Rulebook on the Content and Form of Leasing Agreements and the Methodology for Calculating the Effective Interest Rate (Official Gazette nos. 66/14 and 86/18) stipulates that an agreement is considered concluded when it has been signed by all contracting parties.

Article 292, paragraph 4 of the Obligations Act (Official Gazette nos. 35/05, 41/08, 125/11, 78/15, 29/18) explicitly states that the requirement for written form is fulfilled if the parties exchange letters or agree by means of another device that allows the content and identity of the declarant to be established with certainty.

Regarding the matter of concluding agreements electronically, Article 293, paragraph 1 of the Obligations Act stipulates that an agreement is concluded electronically when the parties have agreed on the essential components of the agreement.

Article 293, paragraph 3 of the Obligations Act stipulates that the use of an electronic signature in the conclusion of an agreement is governed by special regulations.

Article 25, paragraph 2 of Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC indicates that a qualified electronic signature has the same legal effect as a handwritten signature.

Following the cited provisions, it unequivocally follows that a leasing agreement concluded electronically (where the contracting parties have agreed on the essential components of the agreement and signed it with a qualified electronic signature), from which the content and identity of the declarants can be established with certainty, satisfies the condition of written form under Article 52, paragraph 5 of the Leasing Act.

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Furthermore, Hanfa takes into account that the aforementioned condition may also be fulfilled in cases where the contracting parties have signed the leasing agreement with another type of electronic signature, which, according to regulations on electronic signatures, ensures the non-repudiation of the signature (the signatory cannot deny having signed the document), and which, within the meaning of Article 14, paragraph 9, point 3 of the Act on the Prevention of Money Laundering and Financing of Terrorism (Official Gazette nos. 108/17, 39/19), is considered another secure, remote, or electronic procedure for the identification of contracting parties, which have been regulated, recognized, approved, or accepted by the relevant bodies of the Republic of Croatia.