Written form

Written form / Schriftform

August 10, 2021

Legal transactions are generally free of form. However, the law occasionally prescribes a form. In addition to the written form, the law also recognises the text form, the electronic form, the certification and the notarisation.

Written form

If written form is prescribed by law, a deed must be drawn up in accordance with section 126 I of the German Civil Code (BGB) and this must be signed by the drawer in person with his or her name or signed by a notarized hand sign. The law also speaks of the writing form. A certificate is the written embodiment of a declaration. The text may be printed, typed or handwritten. It does not have to be written by the declarant himself. This is where the simple written form differs from the handwritten will, where the testator himself must also have written the document and signed it with his own hand (sections 2247 I BGB). A declaration and its signature on a writing tablet does not comply with the written form, as it is not a deed. The signature must be in the person's own name. Signing only with the family name is permissible, as is the use of a pseudonym, as long as the declarant can be reliably identified under it (e.g. Rihanna). The signature does not necessarily have to be legible, but it must show the sequence of letters and have characteristic features. Jurisprudence is very generous here and also recognises barely legible signatures if the signatory usually signs in this way.

The signature must be handwritten, which means by hand. However, this does not exclude representation, as long as the representative makes it clear that he is acting on behalf of the represented person (section 164 I BGB), for example by adding "on behalf of xy" next to the signature. In the meantime, however, it is also recognised under customary law that the representative can sign in the name of the represented person with his own hand. If a civil law partnership (sections 705 ff.) concludes a contract, it is sufficient if only one partner signs and a stamp of the partnership is attached to the signature. Only what stands before the signature is considers valid and is therefore protected.

If a contract is concluded, both parties must sign on the same document (section 126 (2) sentence 1 BGB). If each party to the contract is to receive a single document, it is also sufficient if, according to section 126 (2) sentence 2 BGB, each party signs only the document intended for the other. If V makes an offer to K to rent his flat by sending a signed draft contract and K declares acceptance to V by letter, no contract has come into existence. V and K must sign the contract document together. It is sufficient if K puts his signature on the deed sent by V or according to section 126 (2) sentence 2 BGB if V signs a deed intended for K and K signs a deed intended for V. The contract must be in writing.

The written form for a legal transaction can also be decided by legal act. Here it is up to the parties individually to tighten or ease the requirements compared to the legal ones. In case of doubt, section 127 (1) BGB stipulates that the provisions of the statutory form shall apply. A facilitation exists according to section 127 II BGB. In case of doubt, as long as no contrary intention can be assumed, telecommunication is sufficient to preserve the written form agreed by legal transaction and, in the case of a contract, the exchange of letters (section 127 (2) sentence 1 BGB). If, for example, it has been agreed that a letter of termination can only be sent in writing by registered mail and one party declares the termination by fax, the agreed written form is preserved if no other intention of the parties is to be assumed. The registered letter is intended to facilitate the proof of receipt, but not to make the termination more difficult in general. Insofar as the notice of termination was still transmitted by telecommunication and the parties' intention does not conflict with this, the notice of termination is validly declared by agreed written form.

Use of DocuSign

In order for the written form requirement to be met when using DocuSign, the signature must be a so-called qualified electronic signature. The definition is derived from Art. 3 No. 12 of the eIDAS Regulation. According to this, a qualified electronic signature requires an electronic signature (Art. 3 No. 10 eIDAS Regulation) that has the characteristics of an advanced electronic signature (Art. 3 No. 11 eIDAS Regulation, Art. 26 eIDAS Regulation) and also fulfils the security requirements for a qualified electronic signature (Art. 3 No. 15, No. 23 eIDAS Regulation). According to DocuSign, it offers a qualified electronic signature that meets these European standards. See here:


According to this information, Docu Sign is also a trust provider within the meaning of Art. 3 No. 19 eIDAS-Reg. This means that it is only necessary to check whether the signature used complies with these standards. This can be determined from contract documents or by a confirmation from Docu Sign again.

Overview of documents requiring the written form

Written form is required in the following documents: (not exhaustive)

  • Notice of termination under labour law (section 623 BGB: express exclusion of electronic form in section 623 sentence 2 BGB)
  • Delivery of notice by printed document in verifiable form (handover against receipt or dispatch as registered letter with advice of receipt). Fax, e-post letter, email, etc. do not satisfy the written form requirement.
  • This also includes notices of change of employment as well as ordinary and extraordinary termination, irrespective of whether the employer or the employee terminates the employment.
  • The requirement of the written form cannot be waived by the employment contract; only stricter provisions can be agreed.
  • This written form requirement exists even if the Dismissal Protection Act (KSchG) does not apply. Thus, even in small businesses and if notice of termination is given in the first six months of the employment relationship.
  • Exception in the vocational training relationship: Section 15 of the Vocational Training Act requires termination to be in writing but does not expressly exclude electronic form.
  • Termination agreement under labour law (section 623 BGB)
  • The requirement of written form also applies to offers of change.
  • fixed-term contracts under labour law (section 14 of the Part-Time-and Limited-Term Employment-Acht (TsBfG))
  • written proof of essential contractual conditions of an employment contract ( Act of the Proof of the Existence of an Employment Relationship NachwG) - therefore employment contracts are best in writing.
  • Surety (section 766 BGB)
  • Acknowledgement of debt (section 781 BGB)
  • Consumer loan (section 491 BGB)
  • Subsequently agreed non-competition clauses sections 74 cont. of the German Commercial Code (HGB)