Form (law)

from Wikipedia, the free encyclopedia

In law, the form is the external design of a legal transaction or legal act .

General

The private autonomy is the right of legal entities , their private legal relationships according to their own decision to make. It includes freedom of contract as a fundamental principle of the law of obligations . In turn, it is subordinate to the principle of freedom of form , which enables declarations of intent to be submitted and legal transactions to be concluded without adhering to a specific form. Therefore, even verbally , by sign language ( handshake , nod ) and even tacitly concluded contracts generally effective. This general freedom of form facilitates and accelerates right-hand traffic, especially in mass transactions in everyday life ( buying in the supermarket ).

Most laws are therefore based on this principle of freedom of form and leave it to the contracting parties to freely choose the form of their means of declaration ( informal transactions ). The most important law of German private law , the BGB , does not mention this general freedom of form, but it can be taken indirectly from the few regulations that require form. This also applies to other legal norms . The administrative procedure according to § 10 VwVfG is not bound to certain forms, as long as there are no special legal provisions for the form of the procedure; it is easy, expedient and quick to do. It can be concluded from this that formal requirements serve neither simplicity nor speed. Formality is therefore an exception.

In cases where formal requirements restrict this freedom of form, they make the legal validity of a legal transaction or legal act dependent on compliance with a certain form (e.g. written form, entry in registers, consultation of witnesses , registration in court ). They force the parties to adhere to the form, otherwise unfavorable legal consequences threaten.

history

The ancient Roman law was total from a legal formalism. The first written law was the Roman Twelve Tables Law from 449 BC. Chr., Whose form of writing was of an informational nature. Legal transactions and legal prosecution were subject to a strict formalism, so that a pontiff within the framework of pontifical jurisprudence, as a connoisseur of the forms ( Latin carmina ) , prepared a legal opinion ( Latin responsum ) for the purpose of instruction for the people if necessary . The old civil legal transactions with binding effect ( Latin nexum ) or the transfer of property , slaves and pack animals ( Latin mancipatio ) were strictly form-bound . Since the Romans were initially not familiar with the use of writing to authenticate private legal transactions, the formal requirement consisted of the use of up to five witnesses. The loan ( Latin mutuum ), however, remained free of form. The smallest speech error in the litigation formulas ( Latin legis actio ) led to the loss of a court case . Justinian I allowed, in addition to the written form, to conclude contracts orally, among other things.

In the Middle Ages , the formalism, the general literacy (continued until the 13th century in Europe Latin consuetudo in scriptis redacta ) and informal agreements recognized. In Germany this was done by the Sachsenspiegel (written between 1210 and 1220 by Eike von Repgow ) and the Schwabenspiegel (1275). The written form only developed with the emergence of the document system, when "letter and seal" or entry in public books was required. The golden bull from 1356 already mentioned the form of documents ("von der furme des violentbrieffs"). The Electoral Palatinate state law of 1582 held "mere words" for "no strong, real connection". Only the Usus modernus pandectarum of Samuel Stryk from 1690–1692 brought validity of all contracts, regardless of form and content. The Dutchman Hugo Grotius assumed that the legally binding nature of a declaration of intent arises from a person's free, autonomous personality and is therefore also valid without any particular manifestation.

The General Prussian Land Law (APR) of June 1794 abolished the formalities of Roman law, because declarations of intent could now be submitted informally. It did not yet use the term written form, although it required it for important contracts. In Sections 131–184 APR, it only listed individual exceptions to the freedom of form. The French Civil Code of March 1804 and the Austrian ABGB of June 1811 also propagated freedom of form and content. It was not until the German specialist journal Juristic Wochenschrift from 1888 that the term was mentioned: "The written form is preserved if the document ... is personally signed by the author of the declaration of intent or is signed by a court or notarized hand sign." The motives for the BGB were still favored in 1888 the formal requirement, because this evokes a “business-like mood among those involved, arouses legal awareness, encourages prudent consideration and ensures the seriousness of the resolution adopted”. But the BGB, which came into force in January 1900, opted for a general freedom of form and left most everyday business to the informal freedom of contract. For most legal transactions in rem , however, the principle of freedom of form does not apply.

purpose

The three classic formal purposes can already be derived from the motives for the BGB:

Clarification function
consists of final clarity and content clarity ;
Warning function
Protection of the contracting parties against haste and
Proof function
Evidence , process reduction, shortening or simplicity it.

The clarification function consists of both final clarity , according to which it is clear that a contract has been concluded, and content clarity, which provides clarity about what the parties have agreed. Particularly in the case of economically significant or risky transactions , the law provides for a formal requirement to protect the parties from being too hasty. The purpose of this warning function is to make the person concerned aware of the risk involved and to reduce the risk of hasty decisions. Hasty and ill-considered binding prevent necessary considerations about the scope of contracts. Real estate transactions are economically significant and subject to risk , so there are particularly strict formal requirements for them. In addition, formal requirements have a function of proof . The form should clearly clarify whether and with what content the deal came about. The parties are warned of legal risks by - obstructive - formal constraints, momentous contracts can achieve legal certainty or later evidential value through written form or stronger forms . In addition, legal advice and instruction can take place before complicated legal transactions .

Finally, formal requirements can be used to ensure the monitoring of the content of the legal transaction or its official control . An effective official control of fixed prices in writing for newspapers and magazines ( section 30 (2 ) GWB ) is carried out by the Federal Cartel Office or by the securities service companies' record-keeping obligations vis-à-vis the BAFin ( section 83 (2 ) WpHG ). The notary sends copies of the property purchase contract to the expert committee (for the comparison value procedure ) and the tax office (for the real estate transfer tax ).

species

In Germany, a general distinction is made between the form prescribed by law ( statutory form requirement ) and the voluntarily agreed form by the parties in a legal transaction ( arbitrary form ; Section 127 (1) BGB). The latter can be chosen by the parties if no special legal form is provided. Many significant sales contracts are drawn up in writing, although the law does not require them to be in writing. The law expressly states whether a certain formal requirement is to be complied with: "The guarantee agreement must be issued in writing for the guarantee contract to be valid " ( Section 766 sentence 1 BGB). In order to take account of the new forms of electronic communication , the electronic form and the text form have existed since August 2001.

The following formal requirements - from the simplest to the strictest form - must be observed:

Text form ( § 126b BGB)
Declarations are to be made in a document or in another form suitable for permanent reproduction in writing . This includes printable e-mails , data carriers , faxes or a printable computer fax . The person making the declaration is to be named, whose signature or its copy is to be made recognizable. Neither a handwritten signature nor an electronic signature is required.
Electronic form ( § 126a BGB)
This form, which comes from the Internet , must contain the issuer and be provided with a qualified electronic signature in accordance with the Trust Services Act. Since April 2017, a law has enabled the electronic form in the federal administration as a permissible form of declaration in many laws and ordinances. The electronic form mostly occurs in mail orders and e-commerce .
Written form ( § 126 BGB)
Certain documents , contracts or certificates must be in writing and the exhibitors and hand the contractor with full name signature to be signed. A notarized hand sign is sufficient instead of the signature. A contract must be signed by the parties on the same document. The type of written form ranges from printed documents to completely handwritten wills .
Certification ( § 129 BGB)
In the case of public authentication, the declaration must be made in writing and the signature of the declaring party must be certified by a notary . The publicly certified form is required in particular for entries and deletions in public registers. Applications for entry in the commercial register are to be submitted electronically in a publicly certified form in accordance with Section 12 (1) of the German Commercial Code ( HGB) , and the official seal can be displayed electronically. If an original or a simple copy is to be submitted or if the document is to be in writing, it is sufficient to send an electronic record; if a publicly certified copy or a notarized document is to be submitted, a document with a simple electronic certificate ( Section 39a BeurkG) must be submitted (Section 12 (2) HGB). In Section 29 (1) GBO , it is required that entries in the land register are only to be made on the basis of officially certified documents (for example the deletion permit ).
Notarization ( § 128 BGB)
the most severe form provision requires that certain transactions by a notary in a transcript must be drafted, read by this the parties approved by the parties and by hand in the presence of the notary signed must be. This includes, in particular, the property purchase agreement in accordance with Section 311b (1) BGB.

For all types, the principle applies that a simple formal requirement can be replaced by a stricter one through the will of those involved, but not the other way around.

Special features in Germany

Public law

In public law ( administrative law ), special formal requirements apply to administrative acts and public law contracts . There are also special regulations for curing a form defect.

Procedural law

Compliance with a certain legal form is an admissibility requirement for many procedural acts . The purpose of the formal requirement is to ensure that the procedure is carried out in an orderly and speedy manner. The formal examination precedes the substantive examination and, by rejecting procedural acts that do not correspond to the form, should relieve the courts in particular . If the form is not adhered to, the procedural act is not checked according to its content, but rejected as "inadmissible".

Form defects

A form error is an error in which only the form but not the content is incorrect. This mostly occurs in legal matters .

Examples of form errors:

  • written application instead of oral application,
  • public notarization is required,
  • a form must be submitted.

Legal consequences of the lack of form

The lack of form in legal transactions that require a form leads to their nullity according to § 125 BGB . The law hereby forces legal transactions to comply with the formal requirements, because otherwise the contracts or legal acts are not or only partially valid. This strict consistency is necessary, otherwise the formal requirements would be worthless. The nullity is absolute and must be observed by the courts ex officio . In cases where formal requirements are stipulated by law, the invalidity no longer needs to be specifically mentioned, because it is generally stipulated by § 125 BGB. In some cases, however, the law expressly allows the legal transaction to remain effective due to the addition of additional circumstances (such as the execution of a contract that has no formal requirements). The cases in which such a cure is possible are specifically described in the law. Thus a non notarised land purchase contract becomes effective when the conveyance and registration are done in the land register (§ 311b paragraph 1 sentence 2 BGB). The contract on a promise of donation concluded without notarization becomes effective if the promised service is provided voluntarily ( Section 518 (2) BGB). According to Section 494 (2) BGB, a consumer loan contract that has not been concluded in writing is valid if the loan is paid out to the consumer.

International

In Austria , § 883 ABGB grants general freedom of form. The law regularly leaves it to the parties in what form they want to close a deal. Business can be concluded verbally, in writing, but also with or without witnesses. However, this freedom of form is restricted by numerous special regulations. The formalities are generally focused on consumer protection and the prevention of haste (z. B. literacy for the undertaking of the guarantor or of certain consumer transactions), the protection of particularly needy persons (z. B. blind ), the evidence (eg. As in Consent in the case of medically assisted procreation, written form of wills, living wills, tenancy law, documentation obligation by court or notary in the event of inheritance waiver or few company sales) and the obvious (e.g. marriage only before the registrar). There are special provisions with regard to the electronic signature.

In Switzerland , too , contracts are generally not subject to any formal requirements. If a certain form is required for a contract, this is expressly mentioned in the law (Art. 12 OR ). If a written form is required for a certain legal transaction, the contract must be handwritten by all parties or digitally signed with a "qualified digital signature" in accordance with the Swiss Signature Act ( ZertES ) (with the exception of legal transactions that require authentication such as e.g. a property purchase or a marriage contract - these types of legal transactions require a handwritten signature).

In many cases, the international formal requirements primarily have a documentation and control function for authorities , in order to prevent companies or private individuals from being used by offshore financial centers , credit institutions ( shadow banks ) or politicians (including the use of tax havens ) through legal structuring or criminal acts or low- tax countries that are more favorable for them ) circumvent important regulations regarding tax liability , creditor protection or consumer protection . Internationally agreed formal requirements for certain legal transactions are intended to prevent money laundering , corruption , tax evasion and terrorism . It is crucial for the effectiveness of the formal requirement that it is not checked, implemented, established or falsified by corrupt organs .

The basic rule is that compliance checks with the laws are made easier by the formal requirement and thus the information, monitoring and enforcement costs of the community are reduced or the negotiating power of the parties is shifted (e.g. towards the consumer), thereby improving overall economic performance of the community increased.

Others

The legal form must be distinguished from formal law . In procedural law, this is understood to mean , on the one hand, all legal norms available for state decision-making . On the other hand, in contrast to substantive law , formal law is the part of law that prescribes how substantive law can be enforced in detail (see authorization ).

" Pro forma " ( Latin pro forma , "for the sake of the (external) form" or for appearance) means that a forced external form is maintained or that compliance with a formal requirement should only create a legal appearance .

literature

  • Karl-Heinz Bernard: Legal transactions that require form : Determination of content, scope and version of the document declaration , Duncker & Humblot, Berlin 1979, ISBN 3-428-04513-0 (also: University of Frankfurt am Main, dissertation 1978).
  • Stefan Kramer: Formal requirements in the employment relationship as limits for the use of electronic means of communication . In: Der Betrieb (DB), 2006, pp. 502–508

Individual evidence

  1. ↑ Helmut Heiss, Form Defects and Their Sanctions , 1999, p. 42
  2. ↑ Heinz Hübner, General Part of the Civil Code , 1996, p. 367
  3. ↑ Dieter Leipold, BGB I: Introduction and general part , 2008, p. 224
  4. ^ Paul Jörs / Wolfgang Kunkel / Leopold Wenger, Römisches Recht , 1987, p. 262
  5. ^ Paul Jörs / Wolfgang Kunkel / Leopold Wenger, Römisches Recht , 1987, p. 23
  6. ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 115
  7. ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 116
  8. ↑ Christian Heinrich, Formal Freedom and Material Justice , 2000, p. 27
  9. ↑ Christian Heinrich, Formal Freedom and Material Justice , 2000, p. 35
  10. ↑ Juristische Wochenschrift, Volume 17, 1888, p. 129
  11. ↑ Motive, Official Edition , Volume 1, 1888, p. 179
  12. ↑ Motive, Official Edition , Volume 3, 1888, p. 7
  13. ↑ Jan Lieder , Die Rechtsgeschäftliche Sukzession , 2015, p. 326 .
  14. ↑ Anna Haßfurter, Form and Treue: The Proportionality of Formnichtigkeit und Form Zweck , 2014, p. 150
  15. ↑ Heinz Hübner, General Part of the Civil Code , 1996, p. 367
  16. ↑ Dieter Leipold, BGB I: Introduction and general part , 2008, p. 225 f.
  17. ↑ Text and amendments to the law on the abolition of dispensable orders in writing in federal administrative law
  18. ↑ Bundestag printed paper 15/4067 of October 28, 2004, p. 35
  19. ↑ Dieter Leipold, BGB I: Introduction and general part , 2008, p. 231
  20. ↑ Helmut Heiss, Form Defects and Their Sanctions , 1999, p. 9
  21. ↑ Helmut Heiss, Form Defects and Their Sanctions , 1999, p. 11
  22. ↑ Helmut Koziol / Rudolf Welser / Andreas Kletecka, Civil Law - General Part, Property Law, Family Law , 2006, p. 204 ff.
  23. ↑ cf. to where the offshore funds are in the world , in: FAZ of April 7, 2016 p.19
  24. ↑ cf. on this in detail Douglass North , Institutions, institutional change and economic performance , 1992, p. 55 ff.
  25. ↑ Synonym for pro forma - Synonyms - Meaning | Antonyms (opposites) - foreign words from pro forma , synonyme.woxikon.de, accessed on April 3, 2011
  26. ↑ pro forma - Duden , duden.de, accessed on April 3, 2011