Glossary term · V
Probative value (electronic signature)
Definition
Probative value is the capacity of an electronic document to be accepted as evidence before a court in the same way as a paper document. It is the pivotal legal concept that determines whether a contract signed electronically can be enforced against your client, employee or supplier in the event of a dispute.
Legal basis in France: the law of 13 March 2000 introduced into the Civil Code article 1366, which establishes a principle of equivalence between paper and electronic documents, provided that (1) the person from whom the document originates can be duly identified, and (2) the document is created and retained under conditions guaranteeing its integrity. Article 1367 specifies that electronic signatures complying with the European regulation eIDAS benefit from this equivalence.
The four cumulative conditions for an electronically signed document to have probative value:
• Identification of the signatory: has authentication enabled identification of a specifically named natural person? Mechanisms: SMS OTP for AES, video identification + KBIS for QES.
• Document integrity: has the content not been modified since signing? Guaranteed by the cryptographic hash embedded in the signature.
• Process reliability: does the signature provider apply best practices (encryption, key management via HSM, traceability)? A qualified provider (QTSP) listed on the European trust list provides the strongest guarantee.
• Traceability: is there a timestamped audit trail that is enforceable (who signed, when, from which IP, after which authentication)?
Legal presumption: eIDAS establishes a presumption of integrity and origin for advanced (AES) and qualified (QES) signatures. In practice, this reverses the burden of proof: it is up to whoever contests the signature to prove it is invalid, not the signatory to prove it is valid. A qualified signature additionally benefits from full equivalence with handwritten signature (Civil Code art. 1367 al. 2).
Duration of probative value: a signed document retains its probative value as long as archiving complies with conditions (integrity, durability, traceability). For contracts with retention > 5 years, the PAdES B-LTA profile with periodic archival timestamps allows extending probative value beyond the expiration of original certificates. See also non-repudiation and LTV.
Legal basis in France: the law of 13 March 2000 introduced into the Civil Code article 1366, which establishes a principle of equivalence between paper and electronic documents, provided that (1) the person from whom the document originates can be duly identified, and (2) the document is created and retained under conditions guaranteeing its integrity. Article 1367 specifies that electronic signatures complying with the European regulation eIDAS benefit from this equivalence.
The four cumulative conditions for an electronically signed document to have probative value:
• Identification of the signatory: has authentication enabled identification of a specifically named natural person? Mechanisms: SMS OTP for AES, video identification + KBIS for QES.
• Document integrity: has the content not been modified since signing? Guaranteed by the cryptographic hash embedded in the signature.
• Process reliability: does the signature provider apply best practices (encryption, key management via HSM, traceability)? A qualified provider (QTSP) listed on the European trust list provides the strongest guarantee.
• Traceability: is there a timestamped audit trail that is enforceable (who signed, when, from which IP, after which authentication)?
Legal presumption: eIDAS establishes a presumption of integrity and origin for advanced (AES) and qualified (QES) signatures. In practice, this reverses the burden of proof: it is up to whoever contests the signature to prove it is invalid, not the signatory to prove it is valid. A qualified signature additionally benefits from full equivalence with handwritten signature (Civil Code art. 1367 al. 2).
Duration of probative value: a signed document retains its probative value as long as archiving complies with conditions (integrity, durability, traceability). For contracts with retention > 5 years, the PAdES B-LTA profile with periodic archival timestamps allows extending probative value beyond the expiration of original certificates. See also non-repudiation and LTV.
Related terms
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