Insufficiency of a fax copy as single evidence of a loan agreement

In re: “Flowtex France S.R.L. c/ Flowtex Servicios Urbanos S.A. s/ ordinario” it was resolved that the existence of the loan agreement invoked by the plaintiff was not duly proved given that the only evidence filed consisted in a copy of a fax. The judgment reflects the Commercial Court's understanding as regards the compliance of the formal requirements provided by the Civil Code to prove the existence of a contract, and also provides certain guidelines in relation to the possible admissibility of the fax as a means of evidence.

In the case, among other matters, an issue discussed was the evidentiary value of a fax to comply with the requirements of Argentine law concerning a money loan agreement that would have been executed by a local company and a foreign one. To resolve on the existence of the loan itself, the Court analyzed if the only evidence filed –a fax attached in simple photocopy- was sufficient to comply with the evidence requirements provided by the Civil Code.

Section 2246 of the Civil Code provides that "the loan may be agreed orally; but it may not be proved other than by a public instrument, or by private instrument of certain date, if such loan is over the amount of ten thousand pesos."  The Court considered that the "fax interchange" does not adequately fulfill the above mentioned evidence requirements. Pursuant to Argentine law, judicial recognition of private instruments must be made on the basis of the original document, for which reason it was resolved that such original should have been added to the file. The Court stated that the silence kept by the defendant in respect to the authenticity of the fax and its reception does not imply tacit recognition in the terms of section 919 of the Civil Code, which provides that "the silence opposed to acts, or to an interrogation, is not considered as a manifestation of will (…) but in the event that there is an obligation to explain by law (…) or by cause of a relation between the current silence and the preceding declarations".  The party interested in proving the existence of the loan with the fax should also have filed with the Court the original document sent by fax that should have been in its possession, at least with its signature, to be used as the basis of the judicial recognition.

Room A pointed out that even though a fax is an instrument that forms part of the new techniques of communication and has certain security features, such as particular numeric passwords, exclusive codes or encryption methods, a fax with such characteristics was not accompanied in this case. The plaintiff did not even attach the simple confirmation notice that is emitted by the fax machine from which the presumed fax would have been sent. Additionally, the photocopies of the fax filed by the plaintiff did not allow identification of the sending fax machine nor could they be examined to determine if they had suffered mechanic erasures or another kind of physical alterations. Consequently, the Court concluded that it was not possible to demonstrate either the identity of the author of the fax or its authenticity.

Another issue analyzed by the Court was the possibility of considering the copy of the fax as prima facie written evidence of the existence of the agreement (principio de prueba por escrito). Room A held that if the confirmation notice had been attached to the file, it would still be insufficient evidence on its own to prove the sending and reception of the fax, which needs to be proved by additional means of evidence and was absent in this case.

Although the Flowtex case reflects the Commercial Court's formalist position to prove the existence of a loan agreement of more than ten thousand Argentine pesos, it also serves as an indication that a fax may be admitted as documentary evidence if certain requirements are fulfilled. The ruling passed by Room E of the National Commercial Court of Appeals in re: “Barbalia Daniel Cristian c/ La Economía Comercial Argentina S.A. de Seguros Generales s/ Ordinario”, also points in the same direction. In similar terms, it holds that even though a fax may be considered a valid instrument for proof in court, it is not enough just to invoke that it was sent and to claim that it had a certain content, but it is also necessary to show evidence of its text and reception, especially when the other party objects both aspects.

These rulings provide guidelines regarding the use of a fax document as valid evidence in court. The party interested in proving the existence of an agreement with a fax must:

(i) file the original document that was sent by fax, at least with the signature of the filing party;

(ii) attach the confirmation notice emitted by the sending fax machine; and

(iii) demonstrate the sending and reception of the fax by additional means of evidence.

In some countries, the incorporation of a fax as evidence is expressly admitted, among other forms of documentary reproduction, such as the photocopy. For instance, in the United States' federal courts, duplicates are admissible the same as originals. They are admitted as evidence because, by definition, these documents are considered exact copies of the original, and therefore their introduction to the process would be objectionable only if there is some question as regards the genuineness of the original.