Recently, two important new legal decisions regarding the issuance and endorsement of digital promissory notes were published in the Mexican Federal Judicial Weekly, established by Circuit Collegiate Courts through the following decision: (i) digital registration number 2031391 with the heading: “Digital promissory note. It must be signed using an advanced electronic signature to be valid as a credit instrument.”, and (ii) digital registration number 2031392 with the heading: “Digital promissory note. Its endorsement must be included in the data message itself and contain the requirements of Article 29 of the General Law of Credit Instruments and Transactions.”

With respect to the first decision, the Court dismissed the claim for payment of a digital promissory note, considering that in the specific case the necessary requirements to guarantee the authenticity of the subscriber’s signature were not met because their electronic signature was not generated by a certification service provider. Based on this, the Court established the legal criterion that digital promissory notes must be signed using an advanced electronic signature issued by a certification service provider, thereby excluding the possibility of using any other types of electronic signatures.

To justify its holding, the Court invoked the principle of functional equivalence, under which electronic documents are granted the same value and legal effects as physical documents, provided they meet the requirements of integrity, accessibility, and attributability of data messages; and concludes by interpreting that attributability is met only by using an advanced electronic signature, together with a certificate issued by a certification service provider regarding the requirements for the preservation of electronic documents set forth in Mexican Official Standard NOM-151-SCFI-2016.

On the other hand, with regard to the second decision, after confirming the lack of legal standing of the endorsee in the procurement of an electronic promissory note on the grounds that his endorsement was not recorded on the promissory note itself, the Court established the legal criterion that in order to endorse a digital promissory note, the endorsement must be included in the data message itself and must also comply with all the requirements established in Article 29 of the Mexican General Law of Credit Instruments and Transactions. As part of its reasoning, the decision states that, for reasons of functional equivalence and legal certainty, the endorsement of an electronic promissory note may be done only by means of a digital endorsement and not a physical one, using the advanced electronic signature of the endorser and specifying all the data required by the aforementioned Article 29, in addition to confirming the validity of the digital promissory note on the respective signature sheet and showing the chain of endorsements with the relevant details for each one of them.

In relation to the matters addressed by these new legal criteria, it is important to consider the following:

• In addition to the principle of functional equivalence, the other principles recognized by the Commercial Code for the use of data messages and electronic signatures must be observed, including those of technological neutrality, freedom of choice, and international compatibility.
• The application of these principles must be consistent, without the application of one principle prevailing over the others, so as not to privilege one existing technology over others and not to exclude future technologies that may cover the same functional equivalencies.
• Forcing the use of advanced electronic signatures could hinder access to digital legal acts for those who do not have access to, or cannot access, an advanced electronic signature.
• Technological neutrality promotes competition and the development of new technologies.
• There are already new electronic signature solutions that add technological elements and functionalities that allow them to ensure their attribution and avoid potential rejection without being advanced electronic signatures per se.
• The principle of functional equivalence should not generate additional legal requirements for the documents to which an electronic signature is applied, but only different alternatives for meeting the same requirements.

These case decisions represent an additional step in the ongoing review and evolution of electronic document execution, contributing to the debate and further development in this area. It is highly likely that new decisions questioning and possibly superseding these decisions through a contradiction of criteria may be issued, making it important to keep an eye on new Court rulings.

Considering the above, readers should carefully review these criteria and the legal and technological implications that impact the validity and execution of electronic credit instruments, including the proper signing and endorsement of digital promissory notes. At CCN, we stand ready to provide advice and comprehensive support regarding the implementation and use of electronic signatures and digital document preservation records in the execution of legal documents, including contracts and digital promissory notes.