The written form and its substitutes
Data protection officers also review and advise on the design of single or multi-page declarations of intent and the implementation of digital administrative processes. Statutory and privately agreed formal requirements play an important role here. This text helps to understand these forms and embeds them in an application-related context. Which forms are interchangeable and what role electronic signatures can play without violating legal requirements forms the core of the analysis.
In the business and legal world, adaptation to digital technologies is inevitable. This is clearly reflected in the evolution of formal requirements, where the written form is increasingly being supplemented or replaced by electronic alternatives. This text discusses the legal framework and the various forms of signing in accordance with German law and European legislation, in particular the eIDAS Regulation. The legal significance and the requirements for the individual forms in business transactions are highlighted. This is because the choice of form also influences the chances in litigation proceedings.
I. Written form
The legal written form, also known as the written form, is fulfilled by the signature of a person under a text. A signature is the result of a handwritten signature, at least one’s own surname, under a text (handwritten signature). This makes the identity of the person verifiable. A hand mark (abbreviation of the name) or a facsimile (reproduction of the name, for example with a stamp or by copying in a scanned signature) is therefore not considered a signature. However, a notarized hand sign counts as a signature (§ 126 BGB).
The signature is placed below a text and not above or next to it. It concludes the text (textual attachments must be referenced in the text). In business transactions, the text typically contains declarations of intent, i.e. expressions of one’s own will aimed at a legal effect, such as an instruction, the submission or acceptance of an offer, a contract or a termination.
In the legal sense, the signature serves to maintain the written form. The written form is required where it is prescribed by law, for example in the case of termination of an employment contract (Section 622 BGB). In addition, the written form can also be agreed within the framework of freedom of form in private law. Compliance with the form is important because a formal error can render the entire legal transaction null and void (Section 125 BGB).
A document designed in this way has a high degree of probative value. The text is considered a private document. It is a written document that represents a declaration in clearly understandable and legible words. If the authenticity of the signature is established, the authenticity of the text is also presumed (Section 440 (2) ZPO). The private document then constitutes full proof that the declarations contained in it were made by the signatory (Section 416 ZPO). In the case of a contract signed by both parties, the proof also extends to the correctness and completeness of the content. In other cases (e.g. termination), however, only the presumption applies (Section 439 (2) ZPO).
II Power of representation
In the case of legal transactions, the person receiving the declaration of intent is interested in whether the person making the declaration was authorized to do so. The question behind this is to whom the action is attributed. The legal entity is represented by directors of the bodies determined by the legislator – i.e. by natural persons such as board members or managing directors. They represent the company externally, both in and out of court. In the case of a GmbH, these are usually the managing directors (§ 35 GmbHG). The managing director signs on the official business paper of the GmbH without adding their name, as the person must be identified on this as part of the management (Section 35a GmbHG). However, if they wish to act on behalf of the legal entity on other paper, they must indicate this accordingly (e.g. with a company or company stamp), as otherwise they run the risk of acting in their own name (BGH, judgment of 23.01.2013 – XII ZR 35/11, para. 14).
In addition, the management may appoint other persons to represent the company in all types of judicial and extrajudicial transactions by granting them power of attorney (Section 49 HGB). The signature is preceded by the addition “ppa.” (per procura).
The appointment of a person to the management board and the granting of procuration are publicly accessible to everyone in the commercial register – for example via the joint register portal of the federal states.
In addition to the power of attorney, other powers of attorney are possible, which can generally be granted without any formal requirements (Section 167 BGB). Acting with power of attorney must be identified to the third party (Section 57 HGB).
The presentation of the original power of attorney document is suitable for this purpose, particularly in the case of unilateral legal transactions (Section 174 BGB). The signature is typically preceded by the addition “i.V.” (by proxy). The addition can be dispensed with if the person receiving the declaration is otherwise aware of the power of attorney and it is also clear to them from the circumstances of the individual case that the declaration was made with power of attorney. Here too, there is no room for doubt if a company or company stamp is used.
However, authorization in individual cases can also result from the usual work tasks, for example in sales or warehouse activities (Section 56 HGB).
If, on the other hand, you wish to express that you are only delivering a declaration, you should add “i.A.” (on behalf of) in front of their signature. Although this addition is not standardized by law, according to general legal understanding, the person is then only considered to be the messenger of the declaration of intent of another person (BGH, judgment of 05.11.1987 – V ZR 139/87; BGH, 19 June 2007 – VI ZB 81/05); the written form is never complied with by the messenger. Exceptions may also arise here from the perspective of the person receiving the declaration in individual cases (Klein, Olaf: Die Kündigung “i.A.” – Characteristics of a lack of written form?, NZA 2004, 1198). This type of signature entails the risk that the contract is invalid.
III Electronic signatures
Driven by Directive 1999/93/EC of the European Parliament and of the Council of 13.12.1999 on a Community framework for electronic signatures, the electronic signature of an electronic document (Section 126a BGB) has found its way into the German Civil Code as a substitute for the signature (Section 126 (3) BGB). This means that the legally required written form can be replaced by a qualified electronic signature, unless otherwise stipulated by law. For example, notice of termination of employment can only be given in writing and not in electronic form (Section 623 BGB).
However, since July 1, 2016, EU Regulation No. 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation) has applied and the above directive has therefore been repealed. Like any EU regulation, the eIDAS Regulation takes precedence over German law. For this reason, the national Signature Act (SigG) and the Signature Ordinance (SigV) lost their legal force, and the Trust Services Act (VDG) was enacted as part of the national formulation of the eIDAS Regulation.
The eIDAS Regulation regulates Europe-wide standardized variants of identification with the aim of accelerating European business transactions, trade and services. It describes the requirements for electronic signatures, electronic seals, electronic registered mail and electronic time stamps, as well as the conditions necessary for their operation.
The purpose of a handwritten signature is to ensure that a declaration of intent cannot be disputed, meaning that the person signing cannot claim that the signature is not their own. It therefore enjoys a high degree of trust in practice. However, this is not the case with all variants of the electronic signature.
In Art. 3 No. 10 eIDAS Regulation, the eIDAS Regulation first defines the term “electronic signature”, which places basic requirements on all electronic signatures.
Building on this, Art. 3 No. 11 eIDAS Regulation defines the advanced electronic signature, which places additional requirements on authenticity and integrity. And again building on this, Art. 3 No. 12 eIDAS Regulation defines the qualified electronic signature, which is a special form of advanced electronic signature, as it is based on a qualified certificate issued by a qualified trust service provider.
The qualified electronic signature is therefore always also an advanced electronic signature; however, the reverse is not true.
The group of advanced electronic signatures therefore also includes qualified electronic signatures, which are a genuine subset of advanced electronic signatures.
In practice, there are also the abbreviations EES for a simple electronic signature, which is not found in the eIDAS Regulation but is nevertheless often associated with Art. 3 No. 10 eIDAS Regulation, FES for the advanced electronic signature within the meaning of Art. 3 No. 11 eIDAS Regulation and QES for the qualified electronic signature within the meaning of Art. 3 No. 12 eIDAS Regulation. In fact, three disjunctive variants of electronic signatures can be developed from the eIDAS Regulation. However, the above abbreviations are not very helpful.
However, a precise understanding of the relationships between electronic signatures is necessary to define the practical areas of application of electronic signatures. The three disjunctive variants of electronic signatures are therefore considered below: the non-advanced electronic signature, the non-qualified advanced electronic signature and the qualified electronic signature. If errors occur during the creation or use of signatures, it must be checked on a case-by-case basis whether these could nevertheless be assigned to one of the three variants.
1. the non-advanced electronic signature
The non-advanced electronic signature consists of electronic data that has been added to other electronic data (an electronic document) or logically linked to it by the signing person (the signing natural person) as part of the signing process, but it does not meet the requirements of Art. 26 eIDAS Regulation. While adding means the addition to a file, the logical link only requires a reference between the electronic signature and the electronic document and therefore not necessarily a coincidence in time or place. Examples of this are a scanned handwritten signature that has been added to a text document, but also simply clicking on the electronic newsletter order button after entering an e-mail address or logging into an online system.
Business emails often include a concluding section containing the sender’s name, company, contact details and other mandatory information in accordance with Section 5 DDG. The term email signature has become established for this – independently of the eIDAS Regulation.
However, this also fulfills the requirements for an electronic signature according to Art. 3 No. 10 eIDAS Regulation, but not according to Art. 3 No. 11 eIDAS Regulation. The non-advanced electronic signature does not use any cryptographic procedures and therefore does not enjoy the same level of trust as a handwritten signature on the basis of integrated mathematical procedures.
2. the non-qualified advanced electronic signature
The non-qualified advanced electronic signature can be clearly assigned to the person signing. It enables the identification of the signing person and is created using electronic signature creation data (unique data used by the signing person to create an advanced electronic signature), which the signing person can use with a high degree of confidence under their sole control. It is linked to the electronically signed data in such a way that a subsequent change to this data can be detected (Art. 26 eIDAS Regulation), but without being a qualified electronic signature. These requirements can be met with a digital signature procedure. For this purpose, the person signing uses a signature key (private key) known only to him or her and a matching public verification key (public key) with which the non-qualified advanced electronic signature can be verified. According to the underlying cryptographic procedure, both keys are considered to be unique with a high degree of probability and the verification key then enables the signing person to be identified, provided that they truthfully use the data required for their identification (e.g. first name, surname, email address and company affiliation) together with the signature keys.
Examples include signatures based on a public key procedure – typically self-generated – such as PGP or S/MIME. In this sense, the non-qualified advanced electronic signature enjoys a high level of trust, provided that the person signing also enjoys a corresponding level of trust – with regard to the above-mentioned data required for their identification – and the public verification key is sufficiently publicly known (e.g. made public on a website over a longer period of time or attached to every email signature).
3. the qualified electronic signature
The qualified electronic signature (often also referred to as QES) is created by the person using it with the help of a qualified electronic signature creation device (a software or hardware device that is used to create an electronic signature and also meets the requirements of Annex II of the eIDAS Regulation).
It is based on a qualified certificate for electronic signatures, a certificate issued by a qualified trust service provider that also meets the requirements of Annex I of the eIDAS Regulation. The high level of trust in the qualified electronic signature is supported in particular by the trust service provider, which is lacking in the non-qualified advanced electronic signature.
4. the digital signature and the digital signature
The terms digital signature and digital signature do not appear in the eIDAS Regulation. The term digital signature is a technical one and refers to the mathematical result in a cryptographic public key procedure. This ensures the authenticity and integrity – i.e. the non-repudiation – of the signed information. A digital signature is necessary to create the advanced and therefore also the qualified electronic signature defined in the eIDAS Regulation. However, the term digital signature is not defined, but is used in common parlance for very different procedures and signatures. In this respect, it is neither generally nor specifically helpful.
IV Substitutes for the written form
Unless otherwise stipulated by law, the written form required by law can be replaced by a qualified electronic signature with the consent of all parties involved, including by implication (Sections 126 (3), 126a BGB). The legislator refers to the replacement of the written form by the electronic form. However, it does not refer to all electronic signatures, but only to the qualified electronic signature. However, an electronic document is not a deed in the original sense, as it lacks physical embodiment.
However, according to Section 371a ZPO, if the authenticity of the qualified electronic signature is established, the provisions on the probative value of private documents apply accordingly to the electronic document. The authenticity of the electronic document is therefore also presumed here (Section 440 (2) ZPO). It then constitutes full proof that the declarations contained in it have been made by the signatories (Section 416 ZPO). In fact, from a cryptographic point of view, the qualified electronic signature has the same probative value as a signature, so that it is logical to equate it with a signature in legal terms.
Furthermore, the legislator defines the statutory text form in Section 126b BGB. It serves as a signatureless form of recording a communication or declaration. It has no significant evidential value, although its falsification is relevant under criminal law (Section 269 of the German Criminal Code). The legislator intended it to be used in cases in which neither the parties nor a third party can have a serious interest in falsifying the content (BT-Drs. 14/4987, 18 ff.).
The requirements for text form are a legible declaration that identifies the declarant (the company name alone is sufficient) and that is stored on a data carrier for a period of time appropriate to the purpose for unaltered reproduction, as well as the beginning and end of the declaration – i.e. the spatial scope of the declaration – can be recognized (e.g. by salutation and greeting or a scanned signature in image form).
The geographical scope is particularly important in relation to an annex. If the attachment itself does not meet the requirements for the statutory text form, it must be referenced in the declaration, as this is the only way to make it part of the declaration. In addition to electronic storage media, a paper sheet also counts as a data carrier. The statutory text form is therefore not limited to electronic media. An audio file does not meet the requirements for text form. A fax or an email, for example, can meet the requirements of the legal text form, as can an SMS, a chat message or a photographed text.
It is questionable whether an ordinary website through which a declaration is made in legal text form fulfills the requirement of a storage medium. In fact, this is only fulfilled by an advanced website, namely if it contains elements that make it almost certain that the information will be stored in paper form or on another durable medium, or if it provides a secure storage area that can only be accessed by entering a login and the information contained there can no longer be changed (BGH, judgment of May 15, 2014 – III ZR 368/13, para. 23).
There is no substitute for the statutory text form with less stringent formal requirements.
However, if no statutory form is specified for a legal transaction, a form agreed under private law (arbitrary form) can be determined by the parties themselves. If there is no agreement on the requirement to fulfill this form – which should be the rule – the form determined by law should apply in case of doubt, i.e. Sections 126, 126a, 126b BGB and, in addition, another form determined by Section 127 (2), (3) BGB is sufficient.
If the written form has been specified, the text form (Section 126b BGB) or – in the case of a contract – mutual communication in text form (Section 127 (2) sentence 1 BGB) is sufficient for compliance. Written form means the same as written form. However, if only “in writing” is used without the noun “form”, written form is not necessarily meant.
If the qualified electronic signature has been determined, a non-qualified electronic signature (Section 127 (3) sentence 1 BGB), e.g. an email signature, is sufficient.
However, the originally agreed form – written form or qualified electronic signature – can be subsequently requested for documentary purposes, so that the full procedural probative force is restored.
Art. 25 para. 1 eIDAS Regulation stipulates that electronic signatures do not lose their legal effect or evidential value if they do not meet the requirements for qualified electronic signatures. This would make Section 127 (3) sentence 2 BGB superfluous. However, the European legislator leaves it up to the national legislator to decide which specific limit it wishes to draw here (Recital 49 sentence 2 eIDAS Regulation).
The legal consequences of the legislator’s quite sensible intervention in the form agreed under private law are considerable and typically only become apparent in legal disputes.
For example, the double written form clause is also regularly invalid due to the general terms and conditions control in accordance with Section 305b BGB (see BGH, decision of 25.01.2017 – XII ZR 69/16). To comply with a notice period, a text message with a sufficiently specific sender and sufficient power of representation is therefore sufficient instead of the contractually agreed written form. The notice of termination in writing could – after the deadline – be submitted subsequently. Legislative restrictions, e.g. in labor law, must be observed.
Only the written form and electronic documents with a qualified electronic signature enjoy the formal probative force of a deed or are equivalent to it. However, it is questionable why this should not also apply to documents with non-qualified advanced signatures, as the requirements for these are sufficient (see Art. 26 eIDAS Regulation); this is particularly the case if the identity of the signatory is sufficiently known in the individual case.
Other forms of electronic signatures and the text form are subject to the free assessment of evidence by the court (Section 286 (1) ZPO), which is regularly based on the court’s everyday experience. Unfortunately, this is not (yet) uniform. In this respect, consideration should be given to the regular use of a qualified electronic signature in the commercial sector.
In addition, only post-quantum cryptographic methods should be used in all advanced electronic signatures as soon as possible so that their probative value is not jeopardized by new mathematical methods in the future.
V. Current legislative proposals
As part of the Fourth Act to Reduce Bureaucracy for Citizens, Business and the Administration, a government draft has been published(https://www.bmj.de/SharedDocs/Downloads/DE/Gesetzgebung/Synopse/Synopse_BEG_IV_RegE.pdf) that makes the statutory written form obsolete in many places. Here are a few examples:
- If a tenancy agreement for land or premises for a period of more than one year is not concluded in writing, it is valid for an indefinite period (Section 578 BGB). In future, text form will be sufficient.
- While it is currently not possible to issue a certificate in electronic form with a qualified electronic signature after the termination of a permanent employment relationship (Section 630 BGB, Section 109 (3) GewO), this should be possible in future with the consent of the employee.
- If the employer’s documentation obligation pursuant to Section 2 (1) to (4) NachwG has so far been waived if the employment contract was concluded in writing, this will also be waived in future if the employment contract was concluded using a qualified signature. This also applies to corresponding amendment contracts (Section 3 NachwG). Only for employees who work in an economic sector or branch of industry pursuant to Section 2a (1) SchwarzArbG will the written form requirement continue to apply.
- If the employer previously had to be notified in writing of the use of care leave (Section 3 (3) PflegeZG), text form will be sufficient in future. This also applies accordingly to the use of family care leave (Section 2a (2) FPfZG).
The law was published on 29.10.2024 (BGBl. 2024 I No. 323).
VI Practice
Various communication channels such as longer e-mail sequences, photographed documents, telephone calls, unhelpfully labeled files and documents or changing signatures, for example, can result in a multimodal contract that consists of many declarations by the individual contracting parties. This makes the entire process more complex than if the contracting parties were to sign a single joint document. Only those who consistently document carefully and do not lose track – especially with regard to legality – will be able to provide substantiated evidence of the content of the contract if necessary (see OLG Celle, judgment of 07.04.2020 – 4 U 141/19). This is because a uniform form is generally not necessary.
