Invalidity of the statement of claim for failure to comply with the requirement of an original handwritten signature

JURISPRUDENȚĂ COMENTATĂ ȘI ADNOTATĂ

Abstract

One of the elements of the statement of claim, according to the provisions of Article 194 letter f) of the Civil Procedure Code, is the signature, the lack of which is sanctioned, according to Article 196 of the Civil Procedure Code, with the annulment of the claim.

The provisions of Article 148 of the Civil Procedure Code are the general regulation, applicable to any application, and Article 194 of the Civil Procedure Code is the special regulation, applicable only to the application for a writ of summons, which, if it is in written form, on paper and not electronically, must bear the handwritten signature of the issuer.

The requirement that an claim be signed by hand, which is intended, for the purposes of legal certainty, to guarantee its authenticity and exclude the risk that it is not in fact the work of the author authorised for that purpose, must be regarded as a fundamental rule of procedure and must be strictly applied, so that where the signature on a document sent by fax is in the form of a graphic transcription, it cannot be equivalent to a signature applied in holographic form to the original document.

What matters is not (only) the identity of the signatures, but their originality, since only in this way can it be established beyond any doubt that the procedural document is the property of its issuer. In the absence of the party's signature, such an application, lacking one of the elements necessary and essential to ensure a minimum procedural discipline, cannot give rise to a legal determination of the court.