Text form

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In German civil law, the text form is a form for legal transactions or declarations or information in connection with legal transactions, which is legible and must be submitted on a durable data carrier and in which the person making the declaration is named.

General

For freedom of contract also includes the principle of freedom of form , the delivery of declarations of intent allows and the conclusion of transactions in no particular 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, particularly in mass transactions in everyday life (such as buying in the supermarket ). However, this does not apply if the law prescribes a certain form for a legal transaction ( Section 125 sentence 1 BGB - legal form) or the contracting parties to a legal transaction agree on a certain form ( Section 127 BGB in conjunction with Section 125 sentence 2 BGB - agreed form) .

The legislature had to supplement the previous "classic" forms, such as the written form, with forms that resulted from the spread of the Internet as a modern means of communication . For this reason, in July 2001 the previous written form was supplemented by the electronic form and the text form. The latter is the simplest of the legally regulated forms in German civil law. It can therefore be replaced by a "higher-quality" form. The characteristic of the text form is the fixing of a message or declaration in legible characters . With the waiver of the handwritten signature and the requirement for a certificate and thus of being bound to the written document , all non-oral possibilities arise for the medium to present the declaration and the type of its transmission. The text form is intended for those cases that have so far been subject to the strict written form, in which the requirement of a handwritten signature is inappropriate and traffic-damaging.

Legal issues

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. The characters in question must be stored on permanent data carriers. 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; a signature is not required - unlike in the case of the written form.

Machine-generated letters , computer faxes , stored e-mails , SMS , faxes or telegrams and electronic storage media such as CD-ROM , DVD , hard disk drive , memory card or USB stick meet these conditions . The main purpose of the text form is to inform the recipient about the declaration and its documentation in order to dispel any doubts about its submission. Therefore, the text form is not adhered to if the declaration is only displayed on a website and cannot be downloaded because it was not sent to the recipient in text form and it is not reproducible.

Historical development of the text form

The text form, together with the electronic form , was introduced into the German Civil Code (BGB) of July 13, 2001 by the law to adapt the formal requirements of private law and other regulations to modern legal transactions . With Article 1 No. 3 of the Law for the Implementation of the Consumer Rights Directive and for the Amendment of the Law on the Regulation of Housing Brokerage of September 20, 2013, the definition of the text form in § 126b BGB new version was aligned with the wording of Directive 2011/83 / EU , without so that a change in content was intended. The text form now refers to the term "permanent data carrier" used in several EU directives.

Function of text form

The text form is essentially used for the permanent transmission of information to the recipient. Their task is therefore to protect the recipient's interest in careful information ( information function ) and, unlike the spoken, fleeting word, in the durability of this information ( perpetuation or documentation function ). The other classical formal functions of civil law (warning, evidence and identity functions) take a back seat.

species

The text form is intended in many areas of law , in particular in:

In civil proceedings, Section 371 (1) ZPO considers electronic documents for visual evidence . The text form enjoys criminal protection against falsification of evidence-relevant data according to § 269 StGB .

Information on websites in text form

In jurisprudence and jurisprudence, it is controversial whether messages or information on websites can also meet the requirements of text form. This problem does not arise when the consumer has downloaded the information. However, the user of the information will not be able to prove this in the event of a dispute.

The ECJ decided that the mere posting of a cancellation policy on a website was not compatible with Article 5 (1) of Directive 97/7 / EC . As a result, there is neither a “issuing” of the cancellation policy by the entrepreneur nor a “receipt” on the part of the consumer. In addition, a website is not suitable as a “permanent data carrier” within the meaning of Art. 5 Paragraph 1 97/7 / EC. The Federal Court of Justice (BGH) accordingly demands that the cancellation policy must be transmitted in a manner suitable for permanent reproduction in characters.

The Berlin Court of Appeal had also previously ruled on a case in which the cancellation policy was only posted on the Internet, but not sent to the recipient (for example by email ). In such cases, the text form according to Section 126b of the German Civil Code ( BGB) is only preserved if the declaration is actually perpetuated by the requesting consumer (by printing out the page or saving it on their own hard drive). This view also corresponds to the prevailing opinion in jurisprudence and the justification in the legislative process.

Since the amendment to § 355 BGB in 2014, the word "text form" is no longer mentioned in consumer contracts. However, the entrepreneur is still obliged to provide the consumer with the cancellation policy - for example in the form of the sample cancellation policy from Annex 1 of the EGBGB - in a permanent form, i.e. in text form.

Termination of online contracts by email

The BGH considered the termination of online contracts in writing by email to be permissible. A general terms and conditions clause that only allows termination in writing represents an unreasonable disadvantage for the contractual partner within the meaning of Section 307, Paragraph 1, Clause 1 of the German Civil Code (BGB), because the special formation of the contract via the Internet and the exclusively digitally designed contractual relationship are not sufficiently taken into account being worn. This would not take full account of the consumer's concerns. Due to the special contract design , the consumer can assume that all declarations can be made digitally (for example by email). For this reason, the same electronic possibilities and forms would have to be allowed for the termination of the contract as for the establishment of the contract.

Since the amendment of § 309 No. 13b BGB on October 1, 2016 by the law to improve the civil law enforcement of consumer protection provisions of data protection law , a stricter form than the text form in general terms and conditions clauses for advertisements or declarations made to the user or a third party are to be given to, are no longer required. This is intended to protect consumers by not making it unnecessarily difficult for them to terminate the contract and by making it easy to determine how the agreed form is to be fulfilled.

Limits of text form

The text form is not suitable for cases in which a declaration should have a high warning or evidence function. As the weakest form, it does not meet these requirements, so that the text form must be replaced by "higher-quality" forms. These are the electronic form ( § 126a BGB) or written form ( § 126 BGB) or even higher quality forms. If the text form is chosen and it is not legally permissible, the legal transaction is void due to a lack of form ( § 125 BGB).

The legal consequence , if the text form was not observed, depends on the respective purpose in the individual case of the regulation. If, for example, a consumer does not revoke a part-time right-of-residence contract in the legally required text form within the framework of Section 356a (1) of the German Civil Code (BGB), he has not effectively revoked it and loses his right of revocation at the end of the revocation period .

literature

  • Munich Commentary on the German Civil Code, Volume 1, 8th edition, Verlag CH Beck, Munich 2018, ISBN 978-3-406-72601-9 .
  • Munich Commentary on the German Civil Code, Volume 3, 8th edition, Verlag CH Beck, Munich 2019, ISBN 978-3-406-72603-3 .
  • Jauernig, Bürgerliches Gesetzbuch, Commentary, 17th edition, Verlag CH Beck, Munich 2018, ISBN 978-3-406-71269-2 .
  • Palandt, Bürgerliches Gesetzbuch, 78th edition, Verlag CH Beck, Munich 2019, ISBN 978-3-406-72500-5 .
  • Erik Hahn, The notification in text form according to § 312c II 1 BGB - Is it really sufficient to provide it on the entrepreneur's homepage? , JurPC web doc. 132/2008, paras. 1 - 20
  • Christiane Wendehorst, The new law to implement the consumer rights directive , NJW 2014, p. 577 ff.

Individual evidence

  1. ↑ BT-Drs. 14/4987 of December 14, 2000, draft of a law to adapt the formal requirements of private law and other regulations to modern legal transactions , p. 20
  2. ↑ BT-Drs. 14/4987 of December 14, 2000, draft of a law to adapt the formal requirements of private law and other regulations to modern legal transactions , p. 18
  3. ^ Otto Palandt / Jürgen Ellenberger, BGB commentary , 73rd edition, 2014, § 126b marginal no. 7; MüKoBGB / Dorothee Einsele, Commentary BGB , 8th edition. 2018, § 126b Rn. 8th
  4. ↑ Achim Bönninghaus, BGB General Part II , 2014, p. 84
  5. ↑ MüKoBGB / Dorothee Einsele, Commentary BGB , 8th edition. 2018, § 126b Rn. 8 f.
  6. ↑ cf. Recital 23 of Directive 2011/83 / EU (Consumer Rights Directive)
  7. ↑ Burkhard Boemke / Bernhard Ulrici, BGB General Part , 2009, p. 170
  8. ↑ BGBl. I p. 1542, PDF, protected
  9. ↑ BGBl. I p. 3642, PDF, protected
  10. ↑ BT-Drs. 17/12637 of December 14, 2000, draft of a law to adapt the formal requirements of private law and other regulations to modern legal transactions , p. 44
  11. ↑ MüKoBGB / Dorothee Einsele, Commentary BGB , 8th edition. 2018, § 126b Rn. 1; Othmar Jauernig / Heinz-Peter Mansel, BGB commentary , 17th edition. 2018, § 126b marginal no. 1
  12. ↑ a b Otto Palandt / Helmut Heinrichs, BGB Commentary , 78th edition, 2019, § 126b Rn. 1, ISBN 978-3-406-72500-5
  13. ↑ BT-Drs. 14/4987 of December 14, 2000, draft of a law to adapt the formal requirements of private law and other regulations to modern legal transactions , p. 19; MüKoBGB / Dorothee Einsele, BGB commentary , 8th edition 2018, § 126b marginal no. 9
  14. ↑ BT-Drs. 14/4987 of December 14, 2000, draft of a law to adapt the formal requirements of private law and other regulations to modern legal transactions , p. 18 f.
  15. ^ Adolf Baumbach / Klaus J. Hopt / Hanno Merkt, Commentary HGB , 38th edition 2018, § 438 Rn. 3
  16. ↑ Art. 5 para. 1 of Directive 97/7 / EC of the European Parliament and of the Council of May 20, 1997 on consumer protection in the case of distance contracts (ABIEG No. L 144 of June 4, 1997, p. 19)
  17. ↑ ECJ, judgment of July 5, 2002. Az .: C-49/11 (Content Services Ltd / Federal Chamber of Labor), margin no. 37
  18. ↑ ECJ, judgment of July 5, 2002, Az .: C-49/11 (Content Services Ltd / Federal Chamber of Labor), margin no. 51
  19. ^ BGH, judgment of April 29, 2010, Az .: I ZR 66/08 = NJW 2010, 3566 , 3567; Margin no. 19; BGH, judgment of May 15, 2014, Az .: III ZR 368/13 = NJW 2014, 2857 , Rz. 19th
  20. ^ KG Berlin, decision of July 18, 2006, Az .: 5 W 156/06 ("long text"); see also the corresponding short text on the resolution of July 18, 2006
  21. ^ KG Berlin, decision of July 18, 2006, Az .: 5 W 156/06, Rn. 28
  22. ↑ Otto Palandt / Jürgen Ellenberger, BGB Commentary , 73rd edition, 2014, § 126 Rn. 3
  23. ↑ BT-Drs. 14/4987 of December 14, 2000, draft of a law to adapt the formal requirements of private law and other regulations to modern legal transactions , p. 40: "With this form of distribution, the entrepreneur should expediently provide the consumer with the necessary information by e-mail or in in a similar way by remote data transmission, if it is ensured that they reach the consumer in a sufficiently "permanent" form. [...] The retrieval and "downloading" of the information from the World Wide Web (WWW) can also be used. of the Internet are sufficient if the consumer saves the information on a permanent data carrier (e.g. the hard drive) or prints it out. "
  24. ↑ Law for the implementation of the Consumer Rights Directive and for the amendment of the law regulating housing brokerage of 13 June 2014 (Federal Law Gazette I p. 3648)
  25. ↑ MüKoBGB / Christiane Wendehorst, BGB commentary , 8th edition 2019, § 312a Rn. 41; Christiane Wendehorst, The new law to implement the consumer rights directive , NJW 2014, p. 583
  26. ↑ Art. 246a § 2 Paragraph 2 Clause 1, § 4 EGBGB; BT-Drs. 14/4987 of December 14, 2000, draft of a law to adapt the formal requirements of private law and other regulations to modern legal transactions , p. 60; MüKoBGB / Dorothee Einsele, BGB commentary , 8th edition 2018, § 126b marginal no. 4; MüKoBGB / Christiane Wendehorst, BGB commentary , 8th edition 2019, § 312d Rn. 41
  27. ↑ BGH, judgment of July 14, 2016, Az .: III ZR 387/15 = NJW 2016, 28
  28. ↑ BGH, judgment of July 14, 2016, Az .: III ZR 387/15, Rz. 9 ff.
  29. ↑ a b BGH, judgment of July 14, 2016, Az .: III ZR 387/15, margin no. 11
  30. ↑ Law to improve the civil law enforcement of consumer protection provisions of data protection law of February 17, 2016 , Federal Law Gazette I p. 233; Rationale for the government draft, Bundestag printed matter 18/4631, p. 2
  31. ↑ BT-Drs. 18/4631 , justification for the government draft , p. 1 f.
  32. ↑ BT-Drs. 14/4987 of December 14, 2000, draft of a law to adapt the formal requirements of private law and other regulations to modern legal transactions , p. 20
  33. ↑ MüKoBGB / Jörg Fritsche, BGB Commentary , 8th edition 2019, § 355 Rn. 48