Dutch Supreme Court clarifies evidentiary rules concerning signatures and signed documents
In two recent decisions, the Dutch Supreme Court has clarified the evidentiary power of signed documents. If the signatory unambiguously denies that the signature on the document is his or hers or claims that another party has tampered with the signature (for instance, through forgery or copying a signature from one document and pasting it in another), it is up to the party invoking the signed document to prove the signature's authenticity (ECLI:NL:HR:2019:572).
However, if the signatory does not contest that he or she signed the document, but claims the document is false in the sense that it was altered after signing, it is then in principle up to the signatory to prove the falseness of the document (ECLI:NL:HR:2019:641).
Background: evidentiary power of written signed documents
Under Dutch law, a signed document meant to serve as evidence between parties (“onderhandse akte”), has what is known as 'imperative' power of evidence (Art. 157.2 Dutch Code of Civil Procedure). The court must, in principle, accept that statements made in signed documents between two parties are true as between those parties. This imperative power of evidence can be rebutted, but providing such rebuttal evidence may prove difficult. What if a party is confronted with a written statement with that party’s own signature on it – and claims never to have seen it before, and certainly never to have signed it?
Copying and pasting a signature?
In a case concerning a renovation of a house, the contractor sent an invoice for additional work to the owner of the house. The owner did not pay: he had not agreed to the additional work. The contractor, however, insisted on payment, presented written confirmation of the assignment for the additional work, signed by the owner, and initiated legal proceedings. The owner recognized his signature, but denied that it was his signature, or at least that he himself had signed. According to the owner, the contractor must have tampered with the document by somehow copying and pasting the signature from another document. The Court of Appeal was not satisfied by the owner's claims. It considered that the owner had not challenged the authenticity of his signature and that an expert had confirmed this fact, while the owner's alternative explanation was insufficiently substantiated. Therefore, the Court of Appeal decided that it was sufficiently established that the owner had signed the confirmation.
Decision of the Supreme Court
The owner turned to the Dutch Supreme Court. He complained that he had disputed having signed the confirmation and invoked Article 159.2 DCCP. As a counterweight to the strong evidentiary power of written signed statements, this article provides that if a party "empathically" – firmly and unambiguously – denies having signed the statement, such statement has no evidentiary power at all as long as it has not been proven whose signature is in fact on the statement. In its decision of 12 April 2009 (ECLI:NL:HR:2019:572), the Supreme Court agreed that the owner's defence sufficed for such an empathical, firm denial and annulled the Court of Appeal's decision. The Supreme Court confirmed that Article 159.2 DCCP does not set any further requirements than "empathical" denial and does not require that the person denying substantiates this denial. In addition, the Supreme Court confirmed that in case of firm and unambiguous denial, the burden of proof concerning the authenticity of a signature is borne by the person invoking the signed document. If one is ever confronted with one's own signature on a document without having ever signed that document, an unambiguous and firm denial therefore suffices (in principle) to put the ball back in the court of the party invoking the 'signed' statement. That party will have to prove the statement was in fact signed by the alleged signatory.
What about the authenticity of signed documents?
In another case recently decided by the Dutch Supreme Court, the discussion was not about whether the signatory had or had not in fact signed, or about the authenticity of the signature, but about whether a signed contract for the sale of an apartment had been altered after signing. The seller claimed that he had signed a contract of only one single page. The vendor however invoked a signed contract consisting of two pages, including a loan to the seller on the first page. The seller's signature was on the second page only. The Court of Appeal decided that the first page, which had no signature, did not qualify as a signed document and therefore had no specific evidentiary power.
Decision of the Supreme Court
In its decision of 19 April 2019 (ECLI:NL:HR:2019:641), the Supreme Court disagreed. For a signed document to have imperative evidentiary power (except where rebutted as discussed above) it is not necessary for every page of the document to have been signed. Signing the last page only is sufficient. If the signatory does not contest signing the document, but claims the document is false in the sense that it was altered after he signed, it is then up to the (alleged) signatory to prove the falseness of the document. However, the Supreme Court 'helps' the signatory (in this case: the seller), by emphasizing that the court may assume that a signed document is false, subject to proof to the contrary, on the basis of unexplained irregularities in the text of the document or the improbability of the argument of the party invoking the document. Nevertheless, to avoid discussions and potential disputes such as these as far as possible, it is advisable for all signing parties to initial every page of a contract.
