The New Borders Between Written Documents and Merely Representative Documents in the Age of Digital Documents

Abstract

Starting from two different concepts of writing, as they can be found in the Interpretation Act of 1978 of United Kingdom and in the article 1.11 of the Unidroit Principles, as well as from the contraposition in Italian law between «scritture» (written documents) and «riproduzioni meccaniche» (mechanical reproductions), the article investigates, in the light of the new issues raised by digital documents in the information society, whether the representation or reproduction of words in a visible form is necessary to comply with the requirements of European private law regarding written form and evidence, or whether any form of communication which preserves the documentation of the information it contains and which is reproducible in a tangible form is sufficient. Arguing the preference for the second solution and taking into account various provisions in force at various levels in the field of European law (and in particular certain provisions of the Codice civile, the BGB, the ABGB, the Código civil, the Greek civil code and the English Law of Property, on the one hand, and of the art. 1(4), letters a and c, of the Unidroit Convention on International Factoring and of certain recitals and articles of Directive 85/577/EEC, of Directive 97/7/ EC and of Directive 2011/83/EU, on the other hand), in the article is drawn a distinction between «written documents», or «declarative documents» (i.e. those which constitute the means of making written declarations), on the one hand, and «purely representative documents» (which do not constitute the means of making such declarations).

Received: 23 May 2019
Accepted: 3 July 2019
Published online: 30 October 2019