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Tuesday, 21 April 2020

Can a partnership be incorporated without physical presence of the constitutors?

Romina Abiuso

Romina Abiuso

Elisabeth De Nolf

Elisabeth De Nolf

Hanne Verlinden

Hanne Verlinden

Senior Associate

The partnership is a commonly used control structure for estate planning purposes. A partnership is usually established between parents and children. Given the Covid-19 virus, the physical gathering is currently not allowed. However, a partnership can also be established electronically.

In many cases, a control structure such as a partnership is established in relation with a notarial gift of movable property. The deed of gift is drawn up in front of a Belgian or foreign notary. Other contributions on our website have addressed the question under which circumstances this can happen in times of Corona before a Belgian or Dutch notary.

The signing of the partnership’s deed of constitution and articles of association usually takes place either at home or privately at the notary. The Belgian Federation of Notaries stated that the signing of private documents at the notary's office should be avoided as much as possible and should be replaced by signing by post or e-mail. In order to avoid that the (usually) numerous originals of the partnership’s memorandum of association have to be sent from party to party by post, the electronic establishment of the partnership is a good alternative.

Provisions concerning electronic agreements and electronic signatures have been included in our Belgian law for a long time. A European Regulation also regulates the matter.

Since 2001, a handwritten signature is no longer required for private documents. It is possible for each party to place its electronic signature under an agreement. An important issue here is the evidential value of such an electronic signature1

There are different ways of electronic signature, ranging from a simple scan of the handwritten signature to more advanced methods. However, not all of them meet the legal requirements. Only the so-called qualified signature has the same evidential value as a handwritten signature and is therefore preferable for the establishment of a partnership.

If you have any questions on this subject, please contact the authors of this article.

1 In order for the electronic signature to be considered as proof of an agreement, the conditions of Article 1322 of the Civil Code must be fulfilled, which means that the signature can be attributed to a person and demonstrates the preservation of the integrity of the content of the deed. Article 1322 of the Civil Code still applies until 1.11.2020, after which the new Book 8 "Proof" in the Civil Code will enter into force. All agreements concluded from that date are subject to the new provisions on evidence. Regarding the electronic signature, this mainly means a clarification of the law.

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