Validity and Proof Issues of Electronic Contracts

Entrance

Digitalization has fundamentally changed the way contracts are formed. Many commercial relationships are now established without physical signatures and paper documents; through email, websites, mobile applications, WhatsApp messages, SMS confirmations, in-platform clicks, electronic signatures, mobile signatures, or online approval mechanisms. E-commerce, SaaS subscriptions, online consulting, remote service procurement, digital product sales, freelancer contracts, software development, distance selling, and marketplace transactions are among the most common areas where electronic contracts are used.

The fundamental question regarding electronic contracts is: Can parties enter into a contract solely in a digital environment without signing any papers? Under Turkish law, the answer is generally yes. This is because, according to the Turkish Code of Obligations, the validity of contracts is not subject to any specific form unless otherwise stipulated by law. According to Article 12 of the Turkish Code of Obligations, the validity of contracts is not subject to any specific form unless otherwise stipulated by law; however, if a specific form is prescribed by law, a contract concluded without complying with that form is null and void.

Therefore, when evaluating the validity of electronic contracts, the first point to consider is whether the contract is subject to any legal formal requirements. If the contract is not subject to any formal requirements, it is possible for the parties to enter into a contract electronically through mutual and congruent declarations of intent. However, if the contract is subject to written form, official form, or special ceremony, it must be examined separately whether the transaction conducted electronically meets these formal requirements.

What is an electronic contract?

An electronic contract is a contract in which the parties express their intentions electronically and establish a contractual relationship through digital means. This contract does not necessarily have to be signed with a secure electronic signature. Checking the "I have read and agree" box on a website, approving a membership agreement in a mobile application, receiving offers and acceptances via email, accepting the terms of service via WhatsApp, or the parties signing a PDF contract with a secure electronic signature can all create an electronic contractual relationship.

However, not all electronic contracts have the same legal force. The legal and probative value of a contract signed with a secure electronic signature is not the same as the probative value of a WhatsApp agreement based solely on a screenshot. Therefore, electronic contracts should be considered in three groups: contracts with secure electronic signatures, contracts established through electronic confirmation/clicking, and contractual relationships formed through messaging/email.

Contracts with secure electronic signatures are the strongest category in terms of written form and proof. Contracts approved via click are particularly common in e-commerce, membership, and subscription relationships. Email and WhatsApp messages can demonstrate the parties' intentions, offer-acceptance relationships, acknowledgments of debt, or commercial agreement; however, in case of denial, technical verification and the integrity of the evidence become crucial.

General Rule for the Validity of Electronic Contracts

In Turkish law, as a rule, the mutual and congruent declarations of intent of the parties are sufficient for the formation of a contract. Even if a contract is concluded electronically, a valid contract can be formed if the declarations of intent of the parties are clear, understandable, and cover the essential elements of the contract.

For example, if a software developer and a customer agree on the scope of work, fee, delivery time, and payment terms via email, the contract can be concluded electronically for software service agreements that are not subject to specific legal forms. Similarly, when a consumer purchases a product from an e-commerce site, pays the price, and electronically approves the distance selling contract, the contract is considered concluded.

However, some contracts are subject to specific legal forms. A real estate sales contract must be officially registered in the land registry. A real estate sales promise contract must be drawn up by a notary public. Transactions subject to official forms or special ceremonies cannot be carried out with ordinary electronic approval or secure electronic signatures. Article 5 of the Electronic Signature Law No. 5070, while acknowledging that a secure electronic signature has the same legal effect as a handwritten signature, stipulates that transactions subject to official forms or special ceremonies by law cannot be carried out with a secure electronic signature.

What is a Secure Electronic Signature?

The concept of electronic signature is broad. Not every digital approval, scanned signature, or signature image added to a PDF constitutes a secure electronic signature. According to the Electronic Signature Law No. 5070, a secure electronic signature is an electronic signature that is exclusively linked to the signatory, created using a secure electronic signature creation tool under the sole control of the signatory, identifies the signatory based on a qualified electronic certificate, and allows for the detection of any subsequent alterations to the signed electronic data.

This definition demonstrates why a secure electronic signature is a powerful means of proof. A secure electronic signature provides authentication, data integrity, and non-repudiation functions all at once. The Information and Communication Technologies Authority (BTK) also states that electronic signatures meet the needs for validity, integrity, accessibility, and non-repudiation in electronic transactions; and that a secure electronic signature has the same legal effect and probative value as a handwritten signature.

Therefore, when referring to an e-signed contract, the crucial point is whether the signature used a secure electronic signature . A signature image pasted onto a PDF, a simple signature made with a computer mouse, a scanned wet signature, or a name and surname at the end of an email are not always considered secure electronic signatures. These may serve as evidence in a specific case; however, they do not automatically create the same legal validity and conclusive evidence provided by a secure electronic signature.

The Impact of Secure Electronic Signatures on Written Form

For some contracts, the law requires a written form. The essential element of the written form is the signature of the person undertaking the obligation. According to Article 14 of the Turkish Code of Obligations (TBK), the signatures of the parties undertaking the obligation are mandatory in contracts required to be in writing; unless otherwise stipulated by law, texts that can be sent and stored with a secure electronic signature also serve in place of the written form. Article 15 of the TBK stipulates that a secure electronic signature shall have all the legal consequences of a handwritten signature.

When these regulations are considered together, contracts subject to ordinary written form can be concluded with a secure electronic signature. For example, in a contract where ordinary written form is legally sufficient, the use of secure electronic signatures by the parties generally fulfills the written form requirement.

However, formal procedures are different. A formal procedure means not only signing, but also that the transaction must be carried out in the presence of a specific authority and according to a specific method. Therefore, legal transactions such as property transfers, those requiring notarization, or those requiring special ceremonies are not valid solely through secure electronic signatures. Article 5 of Law No. 5070 excludes transactions subject to formal procedures or special ceremonies from the scope of secure electronic signatures.

The Problem of Proof in Electronic Contracts

The biggest problem with electronic contracts is often not validity, but of proof . Did the parties truly agree in the digital environment? Is the person who gave their consent really the defendant? Does the email address belong to them? Was the WhatsApp message subsequently altered? Who recorded the clicks? Which version of the contract was accepted? Are there IP records, timestamps, log records, and payment records? These questions become decisive when a dispute arises.

According to Article 199 of the Code of Civil Procedure, electronic data suitable for proving the facts in dispute also constitutes evidence. Therefore, emails, SMS messages, WhatsApp conversations, system logs, order records, screenshots, payment records, IP records, and digital contract confirmations can be presented to the court as evidence. In its ruling numbered 2023/119 E., 2023/1767 K., the 3rd Civil Chamber of the Supreme Court of Appeals also stated that WhatsApp conversations, if they meet the necessary conditions, can constitute evidence within the meaning of Article 199 of the Code of Civil Procedure.

However, not all electronic documents have the same probative value. A document with a secure electronic signature is not on the same level as a screenshot. Data created with a secure electronic signature has the force of a promissory note according to Article 205/2 of the Code of Civil Procedure. The judge shall, ex officio, examine whether the electronically signed document was created with a secure electronic signature.

The Evidential Value of Contracts with Secure Electronic Signatures

Contracts signed with a secure electronic signature are the strongest type of electronic contract in terms of proof. According to Article 205 of the Code of Civil Procedure, electronic data created with a properly secure electronic signature has the force of a promissory note. This means that an electronically signed contract can be evaluated in court like an ordinary written promissory note.

Therefore, in high-value commercial contracts, software development agreements, service contracts, dealership relationships, confidentiality agreements, remote business relationships, B2B sales, and debt-based relationships, the use of secure electronic signatures significantly reduces the risk of proof.

The most important advantage of a secure electronic signature is that it identifies the signatory's identity through a qualified electronic certificate and shows whether the signed data has been subsequently altered. Thus, if one party claims "I didn't sign it" or "the text was altered," technical verification can be performed.

Can a contract be concluded via email?

It is possible to conclude a contract via email. If the parties have clearly expressed their offer and acceptance via email, if the essential elements of the contract have been determined, and if the contract is not subject to any specific form requirement by law, the email correspondence can demonstrate the conclusion of a contract.

For example, if the parties to a consulting service have agreed on the scope of service, fee, payment date, and delivery time via email, these correspondences can be used to prove the contractual relationship. However, there are some risks involved in email correspondence. Who sent the email, who owns the account, whether the account has been compromised, the integrity of the email, and the version of any attached file can all be subject to dispute.

Therefore, the following precautions are important in contracts concluded via email: using a corporate email address, attaching the contract text as a PDF, including a written statement of explicit acceptance by the parties, keeping records of payments and deliveries, using e-signatures or registered electronic mail whenever possible, and preserving the original versions of email headers and attachments.

In most cases, an email, unless it contains a secure electronic signature, may be considered a preliminary document or evidence, but not conclusive proof. In such cases, it is important to support the claim with witness testimony, payment records, invoices, delivery receipts, system records, and evidence of the parties involved.

Establishing a Contract via WhatsApp and SMS

Messaging tools like WhatsApp, Telegram, and SMS are frequently used in daily business transactions. Parties sometimes agree on product orders, service fees, debt acknowledgments, delivery dates, or payment schedules via WhatsApp. For contracts that are not subject to specific legal forms, these exchanges can indicate the formation of a contract.

However, the probative value of WhatsApp conversations is debatable. A screenshot alone may not always be sufficient. The other party may deny sending the message, claim the screenshot is fabricated, allege the phone was used by someone else, or argue that the conversation was taken out of context.

Therefore, WhatsApp conversations should be supported, if possible, by exporting the chat transcript, expert examination of the phone, number subscription information, payment receipts, invoices, delivery records, and witness testimony. In the practice of the Supreme Court, while WhatsApp conversations are not considered conclusive evidence on their own in cases where proof by written document is required, they can be evaluated as initial evidence based on their specific content and may open the door to witness testimony.

In debt collection cases, clear messages such as "Okay, I will pay my debt," "I will send it on this date," or "My remaining debt is ... TL" are important. However, it must be proven who sent the message and whether it was obtained legally.

Contracts Approved via Click

In e-commerce, mobile applications, SaaS, digital platforms, online education, and membership systems, agreements are often accepted via checkboxes or buttons. Consumers or users check fields such as "I have read and agree to the Membership Agreement," "I approve the Distance Selling Agreement," or "I place an order with payment obligation.".

Such agreements may be valid; however, proof requires the correct establishment of the system infrastructure. The company must be able to prove which user accepted the agreement, on what date, with which IP address, which version of the agreement, and by checking which box. If the agreement text is subsequently modified, version records must be kept.

The Regulation on Distance Contracts mandates that contracts concluded via the internet must clearly display information such as essential characteristics, total price, right of withdrawal, and circumstances under which the right of withdrawal cannot be exercised, immediately before the consumer incurs any payment obligation. The regulation also stipulates that the consumer must be informed in writing or via a durable data storage medium. A durable data storage medium includes tools or media that allow for the unaltered storage and subsequent access to information, such as SMS, e-mail, internet, disks, CDs, DVDs, and memory cards.

Therefore, electronic contract approval screens are not only a technical design but also a legal means of proof. The box should not be pre-checked, access to the contract text should be provided, the consumer should understand their payment obligation, and a record of approval should be kept.

The Importance of Electronic Consent in Distance Contracts

In e-commerce and digital service sales, the most common type of electronic contract is distance contracts. The Regulation on Distance Contracts defines a distance contract as a contract established without the simultaneous physical presence of the parties and using remote communication tools. The same regulation also covers digital content and intangible goods such as software, audio, and video prepared for use in electronic environments.

In distance contracts, the issue of proof arises particularly in the following points: did the consumer receive the pre-information, was informed about their right of withdrawal, did they learn the total price, did they understand that the order creates a payment obligation, and was the contract text sent to them via a durable data storage medium?

If the seller or provider cannot prove these facts, they may face unfavorable outcomes in consumer disputes. Therefore, e-commerce sites should regularly store order records, contract confirmations, email delivery records, payment records, IP log information, and contract versions.

Legally Compliant Evidence Gathering in Electronic Contracts

In electronic contracts, it is crucial that evidence is obtained legally. As a rule, it is permissible for one party to present email correspondence, WhatsApp messages sent to them, screenshots of contracts they are a party to, or payment records as evidence. However, unauthorized access to the other party's account, password cracking, secretly obtaining correspondence from someone else's phone, using spyware, or extracting data from a private account can constitute illegally obtained evidence and also pose a risk of crime.

Therefore, the method for collecting electronic evidence must be carefully chosen. When capturing a screenshot, the date, time, username, email address, phone number, URL, document name, contract version, and context of the correspondence should be visible. In significant disputes, notarized documentation, expert examination, evidence gathering, KEP (Registered Electronic Mail) records, e-signature verification reports, and server logs may be used.

To enhance the reliability of electronic evidence, the original data must be preserved. Simply printing it out may not be sufficient. The raw email header information, PDF document signature verification data, system logs, timestamps, IP records, and server logs should all be saved.

Registered Electronic Mail and Timestamp

One of the tools that strengthens proof in electronic contracts is registered electronic mail (KEP), and the other is timestamps. KEP helps to more reliably prove that the electronic message was sent, received, its content remained unchanged, and the time information was accurate. The use of KEP is particularly beneficial in commercial notices, contract terminations, delivery notifications, and official correspondence, as it facilitates proof.

A timestamp serves to prove that electronic data existed on a specific date and has not changed since then. It can be used to demonstrate the historical integrity of contract versions, digital files, offers, code deliveries, digital product packages, or electronic documents.

Not every electronic contract requires a KEP (Registered Electronic Mail) or timestamp; however, in high-value commercial transactions, technical deliveries, digital work contracts, software projects, and debtor-creditor relationships, it increases the evidentiary value.

Common Proof Issues in Electronic Contracts

One of the most common proof problems in electronic contracts is the inability to determine which version of the contract was accepted. The terms of use on the website may have changed subsequently. Therefore, companies should keep records of the version date, change logs, and which text the user accepted with each contract update.

The second issue is the identity of the person giving the authorization. Authorization may have been given from a user account; however, who actually used that account is debatable. Therefore, phone verification, email verification, two-factor authentication, IP logging, payment information, and device logs are important.

The third issue is the reliability of screenshots. Since screenshots can be easily altered, they may not be sufficient on their own. Screen recordings need to be supported by expert examination, notarized verification, device inspection, and platform records.

The fourth issue is whether the electronic contract meets the formal requirements. If the contract is legally required to be in written form, a simple electronic approval without a secure electronic signature may not be sufficient. Even a secure electronic signature alone may not be sufficient for contracts subject to formal requirements.

Things to Consider When Preparing an Electronic Contract

When preparing an electronic contract, the first step is to determine whether the contract is subject to any specific form. If the contract is not subject to any specific form, an electronic approval mechanism and supporting records may suffice. If a written form is required, a secure electronic signature should be preferred. If a formal document is required, the sufficiency of an electronic signature should also be evaluated.

The contract text should be clear, simple, and accessible. The parties, the subject of the contract, the fee, the payment schedule, the delivery time, the terms of withdrawal or termination, the limits of liability, the agreement on evidence, the competent court, the provisions of the Personal Data Protection Law (KVKK), and the electronic notification channels should be clearly stated.

The user's active consent must be obtained during the electronic approval process. Pre-checked boxes should not be used, the user should be able to easily access the contract text, the moment of approval should be recorded, the contract should be sent via a permanent data storage medium, and the approval records should be stored.

In commercial transactions, secure electronic signatures, registered electronic mail (KEP), timestamps, and version control systems should be used whenever possible. This makes it easier to prove the existence, content, and acceptance of the contract by the parties in the event of a dispute.

Conclusion

Electronic contracts are, as a rule, valid contracts under Turkish law. According to Article 12 of the Turkish Code of Obligations, the validity of contracts is not subject to specific forms unless otherwise stipulated by law. Therefore, contracts established via email, website, mobile application, WhatsApp, SMS, or click-through may be valid if the parties' intentions are clear and the essential elements of the contract are defined. However, if the contract is legally subject to written, official, or formal requirements, whether the electronic transaction meets these requirements must be evaluated separately.

Secure electronic signatures are the most powerful legal tool in electronic contracts. According to the Electronic Signature Law No. 5070, a secure electronic signature has the same legal effect as a handwritten signature; Article 15 of the Turkish Code of Obligations also stipulates that a secure electronic signature has all the legal consequences of a handwritten signature. However, transactions subject to formal requirements or special ceremonies cannot be performed using a secure electronic signature.

In terms of evidence, electronic documents are considered documents under the Code of Civil Procedure. While data with secure electronic signatures is accepted as a promissory note, emails, WhatsApp messages, SMS messages, screenshots, order records, and log records can be considered as documents or initial evidence depending on the specific circumstances. Therefore, in electronic contracts, the main issue is often not so much validity, but rather proving who entered into the contract, on what date, with what content, and with what declaration of intent.

In conclusion, electronic contracts are an indispensable tool of modern commerce; however, for legal security, technical infrastructure and contract law must be considered together. Companies and individuals should store versions of contracts, obtain active consent, use secure electronic signatures, utilize evidentiary tools such as KEP (Registered Electronic Mail) and timestamps, legally preserve electronic evidence, and seek professional legal support for important transactions. Although transactions conducted electronically may appear "virtual," the resulting debts, responsibilities, and evidentiary consequences are entirely real.