Shape adjustment law

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Basic data
Title: Law to adapt the formal requirements
of private law and other regulations
to modern legal transactions
Short title: Shape adjustment law (not official)
Abbreviation: FormAnpG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Private law , procedural law
Issued on: July 13, 2001
( BGBl. I p. 1542 )
Entry into force on: August 1, 2001
Please note the note on the applicable legal version.

The Form Adaptation Act serves to regulate the substantive equality of the electronic signature with the hand signature in modern legal transactions .

General

The German signature law does not regulate the substantive and procedural equality of the electronic signature with the hand signature . Substantive equality is regulated by the law on adapting the formal requirements of private law and other provisions to modern legal transactions of July 13, 2001.

The law only includes changes to existing laws such as the German Civil Code (BGB), the Code of Civil Procedure (ZPO), the Commercial Code , various court regulations, the land register regulations and the Consumer Credit Act . The most important goal of the regulation is to create a clear, centralized regulation of the new formal requirements in order to avoid getting mixed up in a large number of regulations. In addition, procedural regulations on the submission of written pleadings and declarations will be adapted.

Substantive legal aspects

Control model

In addition to the types of formal requirements already regulated in Sections 125 et seq. BGB (statutory and arbitrary written form , notarial certification and public certification ), the Form Adaptation Act defines an electronic form ( Section 126a BGB) as a replacement for the written form and a text form for cases in which the hand signature is dispensable ( § 126b BGB).

According to the new Section 126 (3) BGB, the electronic form can replace the written form wherever the law does not expressly make an exception to equality. The FormanpassungsG thus follows the approach of a generalized recognition weakened by exception provisions. The text form is approved by changing the provisions concerned.

Electronic form

The new § 126a Abs. 1 BGB was: ". If the statutory written form to be replaced by electronic form, the declaration of the exhibitor must add to this his name and the electronic document with a qualified electronic signature according to the signature law" With The German legislator implements Article 9 of the E-Commerce Directive (enabling principle) and Article 5 of the EU Signature Directive (substantive recognition).

The qualified electronic signature also fulfills the warning function relatively poorly. Exemptions have therefore been created, especially in areas in which this plays an outstanding role. These are the termination of the employment relationship, the declaration of surety , the life annuity promise to grant maintenance under family law , the promise and the acknowledgment of debt . There are also exceptions for the land register and shipping register law , where procedural law provides for an application for registration to be made in writing. In this respect, the legal basis for electronic document traffic still has to be created. There are further exceptions in the area of employment contracts , in which the parties to the collective bargaining agreement have to decide on formal requirements within the framework of their collective bargaining autonomy, for employment references , which are currently difficult to submit in electronic form as application documents, for consumer credit agreements, for contracts for the partial use of residential buildings and for certain information obligations of the employer, which must be in writing due to overriding EU law.

The requirement of enclosing the name of the signatory is required according to the reason to ensure the identity function of the signature. By adding the name as a signature-like behavior, the relatively weak warning and document closing function of the electronic signature is strengthened. The addition of the name has a certain justification on the one hand, but on the other hand creates additional complexity, which could lead to an increased number of inadvertently void legal transactions. The Swiss legislator z. B. waived this requirement.

Text form

The new § 126b BGB read: "If text form is required by law, the declaration must be made in a document or in another way suitable for permanent reproduction in writing, the person making the declaration and the conclusion of the declaration must be recognizable by copying the signature or otherwise be made. "

The text form dispenses with the signature and only requires the declaration in legible characters (which also includes an electronic transmission that can be represented by the recipient, but not a spoken message). It replaces the written form where a) there is no public interest in significant evidence, where a text b) does not entail any significant legal consequences or these can simply be reversed, and where c) there is no need for hasty protection. It is primarily about information and documentation requirements that cannot be met verbally due to the lack of durability of the recording, but where the requirement of the written form is disproportionate, such as the confirmation of the contractual conditions to the consumer or his notification of changes in the annual interest rate in the case of consumer loans. Part of the aim is also to simplify mass processes, such as certain notifications in the insurance sector.

Unit of the contract document

If the law presupposes a form for the conclusion of the contract, this could already be fulfilled according to § 126 para. 2 BGB only by signing the same contract document by both parties or at least by signing identical contract documents. The conclusion of the contract by signing the offer and acceptance was excluded.

According to Section 126a (2) BGB, this now also applies to the electronic form. Although it is technically possible to provide a document with an electronic signature with a second signature, we are only talking about signing the same documents.

Participation in electronic communication

The law does not anticipate the recipient's consent to electronic communication. An electronic message is still only deemed to have been received if the recipient has approved the use of electronic means of communication at least by implied action and therefore had to reckon with the receipt of electronic messages. There is no such approval in possession of a signing key alone.

Written form

In order to comply with a voluntary written form , in accordance with Section 127 (1) BGB, the provisions of Sections 126-126b BGB also apply . H. If the written form is agreed, the electronic form is also possible.

Electronical form

If the electronic form has been agreed, a simple electronic signature according to Section 2 No. 1 SigG is sufficient (i.e. a scanned signature, for example). This corresponds to the case law on § 127 BGB, according to which, in addition to the explicitly mentioned telegraphic transmission, a fax or the delivery of a copy is sufficient for fulfillment. At least the parties are free to subsequently request a qualified electronic signature in accordance with Section 126a of the German Civil Code (or if this is not possible, manual signature).

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