In current commercial traffic, it is common for communications with customers and suppliers to be carried out through WhatsApp messages or its popular voice notes, due to the comfort and immediacy that this system provides, so that many times the agreements between the parties are closed by this way. And if all goes well, no problem; but when breaches arrive, the question arises as to what obligation the agreements reflected in this way imply for the parties. To answer this question, it is necessary to analyze the budgets that are legally required to determine that a contract has been produced and, consequently, so that its fulfillment can be enforced. In this way, it is considered that the contract exists from the moment one or several persons agree to be bound to give something or provide a service (articles 1254 of the civil code), being perfected by the manifestation of mere consent (articles 1258, 1261 and 1262 of the civil code), and being mandatory, regardless of the form in which they were held (article 1278 of the civil code). Therefore, a contract exists from the moment in which it can be demonstrated that the will to be bound concurred, provided that the law does not require special formalities for a specific act, as, for example, would be the case of the transfer of real estate (article 1280 of civil Code); although this must be nuanced, since the jurisprudential trend tends to prioritize the will of the parties over formal issues, as established by the Supreme Court ruling of September 16, 2014, which considers that failure to comply with the obligation to raise public deed a contract of sale is not a direct cause of contractual resolution under the provisions of article 1124 of the civil code.
In current commercial traffic, it is common for communications with customers and suppliers to be carried out through WhatsApp messages.
In application of the foregoing, any agreement or commitment that establishes obligations whose existence can be proven –even if it had been made verbally–, would be considered an enforceable contract between the parties, so it could be claimed before the Courts in case of non-compliance. . Therefore, the question lies in determining whether the WhatsApp messages constitute sufficient evidence to prove the existence of an obligation contracted by the parties and, as a consequence, be a sufficient basis to support a legal claim. In this sense, WhatsApp messages are considered electronic documents, since they contain information of any nature (text or sound, visual or audiovisual record) in electronic form, filed on an electronic medium according to a specific format and susceptible to identification and differentiated treatment (article 3-5 of Law 59/2003, of December 19, on electronic signatures and article 3-35 of Regulation (EU) No. 910/2014 of the European Parliament and of the Council, of July 23, 2014, relating to electronic identification and trust services for electronic transactions in the internal market), and are of a private nature, as they are not included among those that the law grants a public nature (articles 317 and 324 of the Law of Civil Procedure) . Regarding the probative value of WhatsApp messages as electronic documents, article 3-1 of Law 6/2020, of November 11, which regulates certain aspects of electronic trust services, provides that electronic documents have the value and legal effectiveness that corresponds to their respective nature, in accordance with the applicable legislation; Therefore, it will be the Courts that will determine its legal effects in the same way as the rest of the evidence that is provided to the process. Regarding the jurisprudential doctrine, we must cite the Judgment of the Plenary Session of the Fourth Chamber of the Supreme Court of July 23, 2020, which, although it corresponds to the Labor Jurisdiction, establishes a doctrine applicable to any area, in the sense of confirming the validity and evidentiary effectiveness of the electronic documents (in this case it referred to emails), considering them as documentary evidence, considering that the means of proof are valued in the enumeration provided for in article 299-1 of the Law of Civil Procedure, but that the sources of evidence are limitless and constantly evolving. With regard to its contribution to a judicial proceeding, article 46 of the aforementioned Regulation (EU) No. 910/2014 establishes that an electronic document shall not be denied legal effects or admissibility as evidence in judicial proceedings for the mere fact of being in electronic format; Therefore, the WhatsApp messages can be brought to the process as documentary evidence, to be valued by the judge like any other evidence. Along the same lines, Spanish regulations contemplate the possibility of providing electronic documents, including WhatsApp messages, as well as voice notes, videos, images, etc. included in the conversations carried out by this means (articles 299-2, 382 and 384-2 of the Law of Civil Procedure), which would be recorded through (i) a verification procedure before the Lawyer of the Administration of Justice ( Articles 289-3 and 137-3 of the Civil Procedure Law) (ii) a notarial protocolization act (article 317-2 of the Civil Procedure Law) or (iii) electronic evidence that collects the metadata of the computer files , carried out protecting the chain of custody and the requirements of legality, integrity, authenticity and clarity. And, in fact, it is important to be rigorous when obtaining electronic evidence, to guarantee that fundamental rights are not violated and to prevent the evidence from being nullified (article 11 of Organic Law 6/1985, of July 1, of the Judiciary), so that the right to privacy and data protection of those involved must be respected at all times (article 18 of the Spanish Constitution), without violating the secrecy of communications or commits a crime of revealing secrets (article 197 of the criminal code), especially when the evidence is obtained directly by the interested party.
By Javier López, partner of Écija