Show of hands (right)

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Hand sign (abbreviated "Hz.") Is the legal term for all handwritten name signs originating from natural persons , which do not count as a signature , but as a recognizable abbreviated form of the name.

Entry of a baptism in the church book of Schwerdorff on May 14, 1770, during which the parents, who were not literate, made the proverbial "cross" as a hand sign, which was certified by the pastor's signature
In the same church book an entry from February 9, 1772, in which the father Ioannis Devois recorded himself with his initials "ID"
illegible hand sign

General

The distinction between a simple hand sign and a full name signature is important in legal dealings, because only the signature leads to legally binding declarations of intent , contracts , documents or certificates , provided that the written form is required by law in accordance with Section 126 of the German Civil Code (BGB ). The recipient horizon is decisive for the differentiation. This distinction is not always easy for third parties, as very individual typefaces sometimes make it difficult to differentiate. Whether a script represents a signature or just a hand sign ( abbreviation , paraphor ) is judged by its external appearance. A generous standard is to be applied, provided that authorship is guaranteed. If you do not put your full name under a document and make it clear through the external appearance that the characters were not intended as a full signature, you use a conscious and intentional name abbreviation.

Legal issues

For this reason, the Federal Court of Justice has issued a number of judgments on individual cases and created aids to delimitation. The hand sign has thus developed into a negative selection of all writing that has not been recognized as a signature by the jurisprudence. In the case of written form , Section 126 (1) of the German Civil Code ( BGB) requires documents to be signed by the exhibitor himself by means of a signature or a notarized hand sign. In the case of mere hand signals, the written form of a document is therefore only preserved if it is notarized. Thus, the distinction between signature and hand sign is already given by substantive law. It is only in everyday life that it becomes apparent to which category the respective typeface belongs.

For example, an “almost vertical line with a fine spread and a short, wavy run-out” is not a signature with the full name, but a hand sign. Also hand signals are only the first name, first letter of it or the last name and characters without recognizable letters. If the intention is not to make a full signature, but rather to provide the document with an abbreviated hand signal, a hand signal is to be assumed. The “three crosses” can come from any person and are therefore unsuitable for identifying the author.

In the case of precautionary powers of attorney and supervision decrees , the authentication of the hand sign by the notary of the supervising authority (Section 6 (2) BtBG) is sufficient. This fulfills the character of public authentication. According to the Hessian Local Court Act, the head of the local court is only entitled to publicly certify signatures, but not show hands.

Legal consequences

It is established case law of the BGH that a show of hands is not a valid signature. A show of hands is therefore not sufficient wherever a full name signature is required. The (rebuttable) presumption of Section 440 (2) ZPO that it is a genuine document does not apply to a show of hands, nor does the rule of evidence in Section 416 ZPO apply . Anyone who can only mark with a show of hands is considered to be incapable of writing within the meaning of § 25 BeurkG , so that a witness or a second notary must be consulted when reading aloud and approving. Hand signals without notarial certification do not meet the written form requirement according to § 126 BGB and lead to invalid contracts. The mere hand signal is not sufficient for a receipt within the meaning of § 368 BGB.

Individual evidence

  1. ^ BGH, decision of September 27, 2005 , Az. VIII ZB 105/04; NJW 2005, 3775 under II 2 a and b; Full text.
  2. ↑ MünchKomm-BGB / Einsele, 5th edition, § 126 marginal number 17.
  3. ^ BGH, judgment of February 11, 1982 , Az .: III ZR 39/81, full text.
  4. ^ BGH, judgment of October 25, 2002 , Az. V ZR 279/01; BGHZ 152, 255, 257, full text
  5. ^ BGH, judgment of November 22, 1990, Az. VII ZB 11/90; NJW-RR 1991, 511, here guiding principle.
  6. ^ BGH, decision of June 25, 1975, Az. VIII ZR 254/74; NJW 1975, 1704.
  7. ^ BGH, judgment of November 15, 2006 , Az. IV ZR 122/05; NJW-RR 2007, 351, full text.
  8. ↑ Diether Huhn / Hans-Joachim von Schuckmann, Notarization Act and Service Regulations for Notaries , 2003, p. 383 .
  9. ↑ BGH, judgment of September 28, 1987  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , Az. II ZR 35/87; NJW-RR 1988, 881, full text.@1@ 2Template: Dead Link / www.money-advice.net