Electronic signatures: Useful, but not always enough

Today, electronic signatures – like DocuSign – are everywhere in business. They’re quick, convenient, and fit perfectly in our digital world. But beware: under Swiss law, an e-signature doesn’t always replace a handwritten one when required by law.

Three Types of E-Signatures in Switzerland

Swiss law makes a clear distinction:

• Simple Electronic Signature (SES): the most common one – a click, a PIN code, an email confirmation. Fast and low-cost.
• Advanced Electronic Signature (AES): higher security, based on a personal electronic certificate and cryptography.
• Qualified Electronic Signature (QES): the gold standard – issued by an approved authority with strong authentication. Legally, this is the only type equivalent to a handwritten signature.

Only a QES counts when the law requires a document to be signed in writing.

When the law requires “Written Form”

Certain transactions are required by law to be in writing (legal form), which means that only a handwritten signature or a QES can be used. In these cases, only a handwritten signature or a QES is valid. Among frequent acts in the life of a business, we will mention:

• Assignment of receivables (including transfer of shares in a corporation)
• Transfer of quotas of a limited liability company
• Non-compete clauses in employment contracts
• Apprenticeship contracts
• Acknowledgment of debts in the frame of debt collection proceedings
• Applications to the register of commerce

Can the Parties Agree Otherwise?

Sometimes, yes. Indeed, article 14 para 2bis CO allows the parties to agree contractually that the requirement for written form may be fulfilled by electronic means of communication, in particular by electronic signature. However, this option applies only when the written form is imposed by the parties themselves (contractual form), and not when the law requires written form for the validity of the act (legal form).

If you require written form in a contract (e.g., for amendments), you may agree that a simple e-signature will do.

But if the law requires written form (like in the cases listed above), there’s no way around it: only handwritten or QES signatures are valid. Any attempt to “waive” this rule is ineffective and the contract shall be null and void, which either party may invoke.

Spotlight: Non-Compete Clauses

The Federal Supreme Court recently (4A_5/2025) reminded that a non-compete clause must:

• Be limited in time,
• Define geography and scope,
• And be signed in writing.

Thus, while the employment contract does not require any particular form, certain important clauses relating to the employment relationship must be executed in writing or by QES.

Our Practical Tips

1. Define clear internal rules: SES, AES, or QES depending on the case.
2. Use QES for all high-stakes contracts.
3. Watch out for specific legal traps: non-compete clauses, share transfers, register filings, acknowledgement of debts, etc.

Bottom line: E-signatures are great tools, but not a universal substitute. When in doubt, go for a handwritten or qualified signature – and get legal advice if needed.