Written form vs text form

What do the terms “written form” and “textual form” actually mean? We get to the bottom of this question and focus on correspondence.

Digital transformation continues to progress in business and everyday life. Even today, the smartphone, which is only ten years old, has become an integral part of it. This means that digital media are used in parallel with old media such as paper. But do digital media work differently than paper not only technically but also formally?

It's the same with the post office, for example. Mail is printed out and partly signed on paper. At least, an email doesn't have a handwritten signature.

Paper and ink were the means of communication at the end of the 19th century. Affordable and available to everyone. That is why In the year 1900 The frequently mentioned “Written form” included in the German Civil Code (BGB) became. In accordance with Section 126 (1) BGB, written form means that must be written by hand on paper with your own name under the text.

What is the difference between written form and text form? Paragraph 3 now also states in the written form BGB:

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“The written form may be replaced by the electronic form unless otherwise provided by law.”

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This change therefore generally makes it possible to transfer this means of communication (written form) into the age of digitization. A few exceptions are listed below.

By the way, the text form, which is often interchanged with written form in colloquial language, is regulated in Section 126b BGB. Once explained in a legal way: The textual form provides that you the Can recognize the content of the declaration and the explanatory document and save both permanently retrievable, which is also available with a PDF file. This also does not require any paper. The electronic or digital form of a document replaces a paper document equally in the case of text form.

When is the written form required? special cases

However, the written form requirements laid down by law are more of an exception. In everyday life, declarations in many areas of law are often informally valid. Informally valid means: Even a contract concluded only verbally is usually effectively concluded.

In certain cases, however, the written form requirement is mandatory as required by law. This is the case, for example

• in the event of a dismissal under employment law (Section 623 BGB)
• when concluding a consumer loan agreement (§ 492 BGB)
• in the event of a notification of assumption of a mortgage debt (Section 416 BGB)
• in the event of an objection by the tenant against a termination (§ 574 b BGB)
• in the case of a guarantee (Section 766 BGB)
• in the event of an acknowledgement of debt (Section 781 BGB)

If the written form is required by law, its requirements must be met. Otherwise, the respective declaration is generally not effective. For example, a fax or an e-mail would generally not be enough here.

Since October 1, 2016, terms and conditions have been in text form instead of written form

At least for contracts between entrepreneurs and Consumers are subject to terms and conditions — since 1.10.2016 in accordance with Section 309 No. 13 BGB, that terms and conditions for declarations are no longer in writing, but only a “Text form” (Section 126b BGB) may prescribe. This includes: e-mail, fax, and also applies to Validity of scans. Between entrepreneurs (B2B) However, general terms and conditions may still require written form, as a “stricter form”.

sources:
https://www.it-recht-kanzlei.de/gesetzliche-schriftform.htmlhttps://www.law-blog.de/1021/einhaltung-der-schriftform-durch-scan-oder-e-mail/

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