Lack of form

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There is a formal deficiency in German civil law if a legal transaction is not concluded in the legally prescribed form and therefore does not have legal effect from the start by virtue of the law . A lack of form is one of the grounds for invalidity in legal transactions.

General

As a rule, legal transactions do not require any special form so that legal transactions are unnecessarily difficult. Statutory formal requirements are therefore the exception. However, where the law restricts this principle of freedom of form, 4 objectives are pursued:

  • Warning function : The declaring party should be protected against hasty commitments because of the risks of the transaction by making his obligations clear in writing;
  • Evidence function : The form should clarify whether and with what content the transaction came about and prevent any gaps in memory that arise later - for example in court;
  • Advisory function : The notarial certification is also intended to ensure expert advice and instruction for the parties involved;
  • Control function :

In exceptional cases, official monitoring can also be guaranteed through formal requirements.

Formal requirements can be found predominantly in the BGB , but also in other laws. The law expressly states whether a certain formal requirement must be adhered to: "The guarantee agreement must be issued in writing for the guarantee contract to be valid." ( Section 766 sentence 1 BGB). How a formal requirement is met is regulated exclusively in the BGB.

Types of formal requirements

The BGB provides for three tiered categories of formal requirements in contract law, namely the written form (can be replaced by electronic form), public authentication and notarial certification. The types of contract that are subject to these formal requirements are finally listed in the BGB and other laws. If these formal requirements are not adhered to, the underlying legal transactions are void ( Section 125 BGB). Conversely, contracts are valid that have a form that is higher than that stipulated by law (e.g. notarial certification instead of written form).

written form

The written document is to be signed by the exhibitor himself by signing his name or by a notarized hand sign ( Section 126 (1) BGB). In the case of a contract, the parties involved must sign the same document (Section 126 (2) BGB). The documents must contain the entire legal transaction that must be formally required, signatures must conclude the text of the document spatially - they are always below the text. If the law prescribes the written form for a declaration, § 126 sentence 1 BGB only requires that the certificate is personally signed by the exhibitor. After that, the text does not need to be completed when the signature is made. The declaring person can also sign the paper blank; In this case, the written form is maintained with the completion of the certificate . The law does not define the concept of a document here, but assumes that written documents are a document. In the case of a document comprising several pages, the written form does not require a physical connection between the individual sheets of the document (document unit) if their unit results unequivocally from consecutive pagination, consecutive numbering of the individual provisions, uniform graphic design, context of the text or comparable features.

The written form requires the receipt ( § 368 BGB), the consumer loan contract ( § 492 Paragraph 1 BGB), lease for 1 year (§ § 550 , § 578 Paragraph 2 BGB), employment contract ( § 2 Paragraph 1) Evidence Act ), termination of an employment contract ( § 623 BGB), promise of annuity ( § 761 BGB), guarantee of natural persons ( § 766 BGB), promise of debt ( § 780 BGB), acknowledgment of debt ( § 781 BGB), acceptance of an instruction ( § 784 BGB) , Bearer bonds ( § 793 BGB), the assignment of mortgage liens ( § 1154 paragraph 1 BGB), the maintenance contract ( § 120 SGB ​​XI) as well as checks and bills of exchange ( Art. 1 SchG and Art. 1 WG). The handwritten will must be completely handwritten by the testator and signed by him personally ( Section 2247, Paragraph 1 BGB). In the case of a handwritten will, the signature with the first name and surname of the testator is the rule, but it may be signed in another way (“your father”; Section 2247, Paragraph 3, Clause 2 BGB). As an exception, merchants can sign with the name of their company in accordance with Section 17 (1) HGB. All other written form requirements only require the exhibitor's signature; the preceding text can be pre-printed, typed or handwritten and does not have to be written by the signatory. According to § 37 VwVfG, an administrative act can be issued orally, but must be confirmed in writing. If these contracts are changed, these changes must also be made in writing.

The contracting parties can agree on the arbitrary written form for all legally free legal transactions to facilitate evidence ( Section 127 BGB).

Electronic form

Today's business dealings often make use of electronic communication options that do not meet the described written form. This applies to faxes , e-mails and filling out order forms in the Internet / mail order and e-commerce processes. As far as legal transactions are concerned that are free of form, this does not cause any problems for the validity of the business transactions. The question is, however, whether legal transactions that require formal requirements should not be able to be concluded using these means of communication if there should be comparable procedures for the electronic exchange of declarations of intent for signing and their functions.

Since August 2001, the written form can be replaced by the electronic form , unless the law stipulates otherwise (Section 126 (3) BGB). How the written form is replaced by the electronic form is determined by Section 126a (1) BGB. If the legally prescribed written form is to be replaced by the electronic form, the issuer must add his name to the declaration and provide the electronic document with a qualified electronic signature in accordance with the Signature Act . The Signature Act refers to an asynchronous encryption method using key pairs from public and private key parts, which is called qualified if the key pair and the associated chip card come from a provider certified by the Federal Office for Information Security . The provision makes it clear that only the written form can be replaced by the electronic form, but not stricter form requirements.

Text form

The legal basis for the text form is § 126b BGB. Afterwards, a legible declaration in which the person making the declaration is named must be submitted on a durable data carrier . A declaration can be read if the recipient can read it on paper or as if it were on paper, or if an electronic declaration can be read using a display program. It must be characters act stored on permanent media. In terms of durability, it is sufficient if the recipient can keep or save the declaration so long that it is accessible and suitable for reproducing the declaration unchanged for a period appropriate for its purpose. The person making the declaration only needs to be named; his handwritten signature is not required - unlike the written form.

Authentication

The declaration must be in writing drafted and signed by official certification before a notary be made ( § 129 BGB). Notarial authentication is the certificate that the signature or the hand sign of the exhibitor in the presence of a notary has been carried out or recognized by the declaring party at the specified time (§ § 39 , § 40 BeurkG). It also confirms that the person named in the certification note and the person making the declaration are identical. However, the certification only relates to the authenticity of the signature and any authorization to represent, not to the content of the document. Certification by administrative authorities or the police does not meet the formal requirements of § 129 BGB.

The publicly certified form is particularly necessary for entries , registrations and deletions from 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). The use of a qualified electronic signature (§ 39a sentence 2 and 3 BeurkG) required for an effective electronic filing only replaces the signature of the notary.

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. The proof of the registration requirements in a documentary form prescribed in § 29 GBO is intended to ensure that the content of the land register corresponds to the material legal situation. For this reason, the declarations and facts required for registration in terms of substantive law should be proven to the land registry by public or publicly certified documents. For simple mortgage - and land charges (without declaration of submission), assignments, pledges layoffs, cancellation permits or abandonment of reservations so the official certification formal registration requirement. Although the written form ( § 1154 Paragraph 1 BGB) is sufficient for the validity of an assignment of land charges, public authentication is required for this declaration of assignment to be registered. However, the mortgagee has the right to sue for authentication if necessary (Section 1154 (1) sentence 2 BGB). According to the formal land register law, the registration authorization must be certified. Subsequent changes to the text made by the undersigned maintain the form of Section 29 GBO, because the certification does not refer to the text content. In the case of official registration applications (e.g. foreclosure notice ), the signed document with an official seal is sufficient (Section 29 (3) GBO). The only exception to the general legalization requirement is the real estate purchase agreement that requires notarization . While the certification requirement arises from formal (land register) law, the certification requirement for land purchase contracts is based on substantive law ( § 311b BGB).

Notarial certification

The certification by a notary is the strictest formal requirement. In a hearing in front of the notary, the parties involved declare their will to be notarized ( Section 8 BeurkG), which, after the notary has been instructed, is recorded in writing, read out, approved and signed by the parties and the notary themselves ( Section 9 , Section 13 BeurkG). As part of the instruction, the notary, as a legally qualified person, has to research the will and the goals of the parties involved, to inform them comprehensively about the legal dangers and the legal consequences of the notarization (advisory function) and to formulate the regulations clearly and conclusively (evidence function). The notary has to show the parties involved ways in which risks can be avoided.

Legal transactions requiring notarization are the property purchase contract ( Section 311b (1) BGB), the obligation to transfer property in full ( Section 311b (2) and ( 3) BGB), the promise of donation ( Section 518 (1) sentence 1 BGB), the marriage contract ( Section 1410 BGB) , Disposition of an inheritance ( § 2033 BGB), public will ( § 2232 BGB), inheritance contract ( § 2276 BGB), inheritance waiver contract ( § 2348 BGB), inheritance purchase ( § 2371 BGB) or the assignment / pledging of company shares in a GmbH ( Section 15 (3) GmbHG; this only regulates the assignment). Some contracts under company law ( establishment of an AG according to Section 23 (1) AktG, GmbH according to Section 2 GmbHG; corporate contracts according to Section 53 (2) sentence 1 GmbHG or resolutions of the general meeting of an AG according to Section 130 (1) AktG) must be notarized .

If a land charge or mortgage order for credit institutions is combined with submission of the debtor to immediate enforcement (normal case), this declaration of submission triggers the obligation to notify. The notarized enforcement submission is a unilateral procedural declaration of intent aimed exclusively at the creation of an enforcement title, which is only subject to procedural principles. It is not aimed at a change in the material legal situation, has no material legal effects and therefore remains unaffected by the ineffectiveness of the material basic transaction documented with. Conversely, the expansion of is safety purpose of an enforceable mortgage form free effective because it is not an amendment of the notarized declaration of submission. If the debtor submits to foreclosure for other purposes (e.g. in the context of a guarantee or a constitutive acknowledgment of debt ), the obligation to notarize is also triggered.

The legislature considers property purchase contracts, marriage contracts or the submission of the debtor to foreclosure to be so serious that it has even ordered notarial certification. The pledging / assignment of GmbH shares, which is subject to notarization, is related to the legal aim of making them not as fungible as shares .

Special feature of company purchase agreement

The company purchase contract itself is not tied to a particular form, but there are regulations that make it necessary to notarise the company purchase contract in individual cases. The acquisition of shares in a GmbH must regularly be notarised (Section 15 (4) GmbHG). This also applies if a property is part of the company's assets ( Section 311b (1) BGB). According to Section 311b (3) of the German Civil Code (BGB), a company purchase agreement must also be notarized within the meaning of Section 128 of the German Civil Code in conjunction with Section 1 et seq. BeurkG if it contains the current assets of a company to be acquired. According to the rulings of the Reichsgericht and the Federal Court of Justice, notarial certification can be avoided if the individual asset components are specifically named and listed in full in the company purchase agreement. However, this requires a complete contract drafting in order to exclude the legal risk of missing notarial certification and nullity. In the cited decision of March 26, 2010, the Higher Regional Court of Hamm declared the purchase contract in the specific case null and void due to the lack of a notarial form. The parties had included a list of inventory and inventory items as well as various, precisely defined claims in the company purchase agreement, but also agreed to take over "all assets" and not expressly included trademark rights and various furnishings from the assets of the GmbH in the company purchase agreement. In contrast to land purchase contracts and assignments of the shares in accordance with Section 15 (4) GmbHG, in this case the missing notarial form could not be cured by the execution of the purchase contract.

cure

If possible, legal transactions should not be ineffective simply because of a lack of form. In some cases, the law therefore expressly allows the legal transaction to remain effective due to the addition of additional circumstances such as the execution of a contract that is not in itself a form. The cases in which such a cure is possible are specifically described in the law. For example, a purchase contract for a property that is not notarized becomes effective if it has been conveyed and entered in the land register (Section 311b (1) sentence 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. 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 2301 (2) BGB, this also applies to the promise of donation due to death). A residential rental contract that has not been concluded in writing and is limited to longer than a year is not void, but applies for an unlimited period ( Section 550 BGB). The guarantee that has not been agreed in writing becomes effective if the surety pays the guarantee (§ 766 BGB). An obligation to assign a GmbH share that is not notarized becomes effective if the assignment takes place with notarial certification ( Section 15 (4) GmbHG).

Individual evidence

  1. ↑ BGH NJW 1957, 137
  2. ↑ BGH, judgment of September 24, 1997, Az .: XII ZR 234/95 = BGHZ 136, 357
  3. ↑ also in the case of part-time contracts in accordance with Section 14 (4) Part-Time Limitation Act (TzBfG) for part-time employment contracts
  4. ^ Otto Palandt / Jürgen Ellenberger, BGB commentary , 73rd edition, 2014, § 126b marginal no. 7th
  5. ↑ Achim Bönninghaus, BGB General Part II , 2014, p. 84
  6. ↑ BT-Drs. 15/4067 of October 28, 2004, draft of a law on the use of electronic forms of communication in the judiciary (Justizkommunikationsgesetz - JKomG) , p. 35
  7. ↑ Strictly speaking, it is a target specification
  8. ↑ Hans-Georg Knothe, in: Hans-Joachim Bauer / Helmut Freiherr von Oefele, GBO , 2012, § 29 marginal note 1
  9. ^ BGH WM 1998, 783
  10. ^ BGH WM 1996, 1735
  11. ↑ BGH NJW 1990, 258
  12. ^ BGH WM 1996, 1735
  13. ^ BGH ZIP 1997, 1229
  14. ↑ OLG Hamm, judgment of March 26, 2010, Az .: I-19 U 145/09 = ZIP 2010, 2304
  15. ^ RG from November 12, 1908 in RGZ 69, 416, 420 f; BGH, judgment of October 30, 1990, Az .: IX ZR 9/90 = NJW 1991, 353
  16. ↑ Ralf Bergjan, The Effects of the Law of Obligations Reform on Company Acquisitions, 2002, p. 96 ff.