In the legal system, the written form is a legal form requirement , according to which certain documents , contracts or documents must be drawn up in writing and signed by the exhibitor and his contractual partner personally with a full signature .
The written form is the documentary design of a declaration of intent or a legal transaction by means of text and signature . In addition to the text form , the electronic form , the handwritten form, the notarial certification and the judicial certification in a court settlement, it is a form of a legal transaction and in Germany it is defined by BGB .
These legal form requirements are an exception, so that legal traffic is not unnecessarily difficult. Therefore, wide legal areas of daily life are valid without form, especially the sales contract . However, there are some exceptions where the law expressly provides for the written form. Then she meets one
- Warning function : The declaring party should be protected from hasty commitments due to the special risks of the transaction,
- Evidence function and clarification function : The form should clearly clarify whether and with what content the deal came about.
After the text form, the written form is the weakest form of legal form requirements; for the other formal requirements (certification and certification), a notary or another notary must be involved . The written form can be replaced by certification or certification ; conversely, legal transactions that require certification or certification can not be replaced by written form.
Legal situation in Germany
Compliance with the statutory written form
If a law stipulates the written form for a declaration, the certificate must be signed by the exhibitor himself or herself by means of a signature or a notarized hand sign (§ 40 BeurkG) according to sentence 1 BGB . A name abbreviation that has not been notarized, a facsimile , a printed, machine or electronically created signature are not sufficient to comply with the statutory written form. Even the sentence: "This letter was created by machine and is valid without a signature" does not suffice in the statutory written form, unless the law allows exceptions in mass traffic ( (2) sentence 2 BGB, sentence 1 AktG or para. 1 VVG ).
The signature must spatially complete the text. A "headline" at the top, as is the case with the transfer forms temporarily used by credit institutions , is not sufficient, as is the "side letters" next to the text. The outward appearance of the upper and secondary fonts alone is unsuitable for expressing the assumption of responsibility for the text on the document; they do not fulfill the function of a signature to close off the document text in terms of space and time.
In the case of a contract, the parties must sign on the same document ( document unit ). If several identical documents are included in the contract, it is sufficient if each party signs the document intended for the other party. In practice, it is important that there is no need for a permanent physical connection to the unit of the document ("relaxation jurisdiction"). For the assessment of whether a contract consisting of several parts forms a uniform document with the consequence that the signing of one part of the contract also covers the written form of another part of the contract, it is not decisive whether the sheets of the contract and its annexes are signed when it is signed are physically connected to each other with a stapler in such a way that a solution is only possible by using force (loosening the staple). The Federal Court of Justice (BGH) did not adhere to the original requirement of a permanent physical connection to a document consisting of several sheets. According to the so-called “relaxation law”, a firm physical connection of the individual sheets of a document is not necessary if their uniformity results from other clear characteristics.
The text above the signature does not need to be completed when the document is signed. The declaring party can also draw the paper blank; in this case the written form is preserved when the certificate is completed.
The technical writing of a document that should be in writing is not specified. The exhibitor does not have to write the text himself; he can use third-party forms or pre-formulated forms. It is enough for him to sign the text as his declaration. The only exception is the handwritten will (see below), in which neither (third-party) handwritten nor typewritten or printed texts are permitted.
If the written form is not prescribed by law, but determined by a legal transaction , telecommunication transmission and, in the case of a contract, the exchange of letters are sufficient, unless a different intention can be assumed. If such a form is chosen, an original signature or a notarial hand sign can be requested afterwards.
Statutory orders in writing
Requires the written form by law
- the receipt ( BGB),
- the consumer loan contract ( (1) BGB),
- Termination of rental contracts ( (1) BGB),
- Rental contracts for apartments and commercial premises with a fixed term of more than one year ( BGB),
- an employment contract for a fixed-term employment relationship ( Paragraph 1 Evidence Act ),
- Termination of an employment contract ( BGB),
- Works agreements ( (2 ) BetrVG ),
- Annuities promise ( BGB)
- Guarantee of natural persons ( BGB),
- Promise of debt ( BGB),
- Acknowledgment of guilt ( BGB),
- Acceptance of an instruction ( BGB),
- Bearer bond ( BGB),
- the assignment of mortgage liens on letters ( (1) BGB),
- the living will , para. 1 sentence 1 BGB,
- the power of attorney that includes medical treatment or custodial measures ( (5), (5) BGB; so-called health care proxy ); In this case, the public certification of a hand sign by the supervisory authority is sufficient , Section 6 (2) BtBG ,
- the power of attorney that was granted in civil proceedings for a person incapable of litigation ( (3) ZPO),
- the maintenance contract ( SGB XI ),
- the home contract ( WBVG ),
- an agreement between the merchant and the clerk , which limits the clerk in his commercial activity for the time after the termination of the employment relationship ( non-competition ; para. 1 HGB) and
- Check and bill of exchange ( SchG and WG ).
The handwritten will must be completely handwritten by the testator and signed by him personally ( 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 can also be signed in other ways (“your father”; (3) sentence 2 BGB).
Legal consequences of a lack of statutory written form
The law attaches an essential legal consequence to the written form requirement. If the written form required by law is lacking, the legal transactions made are void due to a lack of form ( BGB), so they do not have any legal effects from the start. There are only a few exceptions to this rule, for which the legislature expressly provides for a cure through fulfillment or execution . The consumer loan contract is also valid without a written form if the loan has been paid out to the consumer ( (2) BGB), the fixed-term rental contract for one year is converted into an open-ended rental contract ( BGB) due to the lack of a written form ( BGB) The corresponding guarantee is effective if the surety pays out of it ( BGB) and the bearer bond is also valid without a personal signature under the requirements of Paragraph 2 Clause 2 BGB.
Legal situation in Austria
In Austria , 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. The principle of freedom of form applies. However, this is restricted by numerous special regulations. Most contracts come about through the declared agreement of the parties ( consensual contracts ), but there are also real contracts that additionally require an actual performance by one of the parties (e.g. loan contract, custody contract). The formal requirements essentially serve consumer protection and protection against hastiness (e.g. written form for the surety's declaration of commitment or certain consumer transactions), the protection of particularly needy persons (e.g. the blind), the preservation of evidence (e.g. in the case of a declaration of consent in the case of medically assisted procreation, written form of wills , living wills , tenancy law, documentation obligations by court or notary in the case of inheritance waiver or few business transactions) and the obvious (e.g. marriage only before the registrar). There are special provisions with regard to the electronic signature.
Legal situation in Switzerland
In Switzerland , contracts are generally not subject to any formal requirements. If a certain form is required for a contract, this is explicitly mentioned in the law ( OR ). Is a written form prescribed for a particular transaction, it must contract by all parties handwritten signed are or with a so-called. "Qualified digital signature" according to the Swiss Signature Act ( ZertES be digitally signed) (except for transactions for which a certification required is like e.g. a property purchase or a marriage contract - these types of legal transactions require a handwritten signature).
- Munich Higher Regional Court: Written form is not maintained for writing tablets
- Literature in writing in the catalog of the German National Library
- BGHZ 113, 48 , 51 f.
- BGH NJW 1992, 829 , 830.
- BAG, judgment of July 19, 2012, Az .: 2 AZR 352/11 - Rn. 20 mwN, BAGE 142, 339
- BGH, judgment of November 13, 1963, Az .: V ZR 8/62 = BGHZ 40, 255 , 263
- BAG, judgment of November 4, 2015, Az .: 7 AZR 933/13 - Rn. 18 = NZA 2016, 547
- BGHZ 22, 128
- also in the case of part-time contracts in accordance with Paragraph 4 of the Part-Time Limitation Act (TzBfG) for part-time employment contracts
- Employment contract: conclusion / 1.3 Form of the employment contract. Haufe-Lexware, accessed February 7, 2019 .
- BVerwG, decision of January 28, 2010 - 9 B 46.09
- OLG Munich, judgment of January 26, 2012, 23 U 3798/11
- Helmut Koziol, Rudolf Welser, Andreas Kletecka: Civil law - general part, property law, family law . 2006, p. 204 ff.