Posts by Javier Prenafeta:

New Spanish Electronic Contract Legislation

It’s worth talking about the recent legislative changes in Spain which affect Tractis since it is a system for negotiating and signing contracts or other legal documents electronically in a fully legally binding form. These new laws incorporate diverse European directives on electronic commerce, contracts at a distance and consumer protection. Therefore, what I say in this post is applicable (or at least should be) to all countries in the EU, not just Spain.

The Distance Selling of Financial Services to Consumers Law

The first change is law 22/2007, from 11th July, on distance selling of financial services to consumers, which came into effect from 12th October last year.

Who does it affect?

The law affects financial service contracts supplied at a distance by credit companies, investment companies, insurance companies, group investment management companies, pension fund management companies, insurance mediators, venture capital management companies and any other company that provides financial services, including foreign companies that have Spanish subsidiaries. It is anticipated that this law will be extended to cover providers of such services that have a permanent base in Spain.

What does it require?

The law adds certain additional requirements for banking, credit, payment, private insurance and pension plan services…which are on the edge of the Spanish general regulation contained in law 34/2002 for IT services to society and electronic commerce (LSSI).

Amongst other questions, it is established that that both the offering and execution of contracts are performed in the context of ‘lasting support’. ‘Lasting support’ means that “any instrument that permits the consumer to store the information about themselves” such that he/she can easily recover, during an adequate period of time, for whatever end the information is destined and permits the reproduction without change of the information stored. Taking into account that the burden of proof falls on the provider, it is necessary to implement a system that guarantees the content stated in the contract and it’s acceptance by all parties. This is translated to the requirements for document integrity, the authenticity of the parties and the non-repudiation of the voluntary declarations in which the system of electronic signature is based.

How does this help Tractis?

Tractis stores contracts with a digital signature, with the possibility to download them in XML format, obtaining the text of the conditions with the associated digital certificates. The employment of the XAdES extensions to said XML, recognised by the European Directive on Electronic Signatures, allows the detection of any modification to the contract, guaranteeing the attributes of authenticity, integrity and non-repudiation. Likewise, the time that the agreement was made is on the record which facilitates the computation of the time period for the expiration of the contract.

If the system for the depositing, acceptance and download of contracts is external, the guarantee will be bigger. In addition, it will comply with article 25 of the LSSI law which determines the intervention of trusted 3rd parties such as trustees of the trust declarations of the electronic contracts which will make evident the date and time of then and will archive them electronically.

Law of Measures Leading Towards an Information Society

The second change is the even more recent law 25/2007 from the 28th December for Measures Leading Towards an Information Society, that came into effect on the 30th December.

Who does it affect?

In general, those that offer services to the information society, with new obligations for companies in specific sectors or with certain volumes.

On the other hand, it fixes the basis for what they name “public contract offers between companies”, a type of B2B protocol to regulate totally electronic auction transactions. The principles of this type of contract are described in article 3.3 of said law, although it requires more development.

What does it require?

It requires, as a function of the volume of operations (more than 6m euros, following the VAT laws) or number of workers (more than 100) in companies in defined strategic sectors (public sector, electronic communications, financial services, electricity, gas and water utilities, travel agents, transport and retail commerce) to put in place mechanisms for the contracting of services, utilities or goods in an electronic fashion based in digital signature certificates. In reality the same obligation is placed on the modification, finalisation or retraction of said contracts, such as the querying of customer data, presentation of complaints, incidents, suggestions or claims and to exercise the rights established in the data protection laws.

How does this help Tractis?

Tractis incorporates mechanisms that put into place all of the above, complying with the established legal obligations without the need to develop a dedicated system.

By Javier Prenafeta
Saved in: Announcements, Legal | No comments » | 11 February 2008

New Tractis Terms Of Service

Today a new blogger makes his debut in the Negonation Blog. He is Javier Prenafeta, a lawyer who specialises in IT and communication law, whom we got to know a while ago thanks to his blog.

At the start of the Tractis launch in Spain, we got in contact with him to find out if he was interested in collaborating. We were pleased to hear that he knew who we were and that he liked the project. He signed up and his initial role was the supervising everything to do with data protection and terms of service (which he explains in this post). Looking ahead, he will participate in the design of new services that have an important legal component.

Javier participates in Safe Creative and other innovative projects, getting involved in areas of the internet that are unexplored from a legal perspective. It is a pleasure to have on board a lawyer who is an entrepreneur and understands entrepreneurs.

When David Blanco asked me to revise the Terms of Service for Tractis, he made it clear that they should be exhaustive and precise, but easy to understand. This is not at all easy for those of us used to complex and disorganized ‘verbal diarrhoea’ which uses strange (and often nasty) jargon.

I am confident that the new legal text, which constitutes the terms of service – that is to say a contract that binds the users with Negonation, with their responsibilities, guarantees and limitations – will be easy to understand. However, given that users rarely read such documents, I think it’s important to highlight some of the more relevant points.

Confidentially and Data Protection.

The ultimate purpose of Tractis, that is, the negotiation and signing of legal documents, requires for obvious reasons due confidentially, not just to protect the identity and signature of the parties, but above all the content of the texts. Spanish law (basically ‘Ley Orgánica 15/1999 de 13 de diciembre’ which describes the protection of personal data), implements not just the European directive but also establishes the strictest regulation in the European Union, defining a real standard with regard to privacy and confidentiality and imposing security measures that allow the user – who is the person who chooses whether the document they negotiate in Tractis is public or private – to decide the accessibility and management of the data with the due guarantees. The folder of each user is registered with the Spanish Data Protection Agency, and the user can freely consult it.

Intellectual Property

One of the advantages of Tractis is its public library, which contains freely available document templates that other users have uploaded. This causes two problems. On one hand the violation of the rights of 3rd parties by including texts, in all or in part, copied without authorisation or plagiarised. The responsibility for this act must fall on the person who uploaded the document. On the other hand, we need to preserve the rights of people who, as part of their work or voluntarily, contribute documents to improve Tractis. So, to those that make available such content, we recognise the corresponding moral rights (one of which is that their authority over these rights is mentioned), and determine the terms under which they surrender the exploitation rights to the platform such that their work cannot be legally used by others, prohibiting in the conditions of use that anyone can extract their text from the platform and commercially exploit it without the consent of the authors.


It is important to state clearly what Tractis is and isn’t. Tractis is a platform that allows users to interact. It’s not an intermediary in the sense that it doesn’t interfere nor take any interest in the negotiations that parties are involved in. In this sense Negonation is responsible for what is referred to as the technical functionality of the platform, for the storage and presentation of the information and for the management of the digital certificates that faithfully identify the parties, such that they are valid. What could be seen as a limitation of responsibility is also a guarantee of neutrality and independence such that remains at the edge of the legal business in question.

Finally, this is probably the best moment to respond to any doubts, queries or suggestions that users might have, so go ahead…

By Javier Prenafeta
Saved in: Legal, Tractis | No comments » | 16 December 2007