Text form

Text form / Textform

September 22, 2023

Legal transactions are generally free of form. However, the law occasionally requires a form. There can be many reasons for this. As a rule, the law requires a form in order to facilitate the preservation of evidence or to counteract the conclusion of a hasty legal transaction. In addition to text form, the law also recognises written form, electronic form, certification and notarisation.

Readable declaration with name

Text form is the legal form with the fewest requirements. If text form is prescribed by law, a legible declaration with the name of the person making the declaration must be made on a durable medium in accordance with section 126b sentence 1 of the German Civil Code (BGB). Legible means that the recipient must be able to read the declaration directly, i.e. it must have been reproduced in written characters and be decipherable. This is usually only problematic if the declaration has been written on paper and the declarant's handwriting is difficult to decipher. If the declaration is in an electronic document, it is also legible if the recipient can make the declaration legible by means of display programs, for example by means of a translation program if he or she does not have a perfect command of the language in which the declaration was made. The mention of the name of the person serves to identify the declarant and as a closing function of the declaration. It is sufficient for identification that the name of the declarant is mentioned in the declaration. This means a special simplification compared to the written form (section 126 BGB) since the text form does not require a handwritten signature. Therefore, it has an evidentiary function but only a minor warning function. The evidentiary function is to provide clarity about the conditions under which a contract was concluded in order to avoid disputes. This is certainly the case by writing down the declaration. The warning function, on the other hand, is intended to protect against the hasty conclusion of an important legal transaction by raising the hurdles to the conclusion of the contract. If a declaration does not have to be signed by hand, it may be given carelessly or even forged.

Thus, the text form regularly only comes into play for acts similar to legal transactions. Examples are the rent increase demand pursuant to sections 558, 558a I BGB and pursuant to section 559, 559b I 1 BGB or the revocation instruction in consumer contracts pursuant to article 246 III 1 Introductory Act to the Civil Code (EGBGB). Furthermore, it is expected that the end of the content of the declaration is recognisable. In addition, the spatial identification of the conclusion of the declaration is still required to ensure completeness. A facsimile stamp, a scanned signature or a greeting is sufficient for this purpose. What constitutes a permanent medium is defined by the legislator in section 126b sentence 1 no. 1, 2 BGB. According to this definition, a permanent medium is any medium that enables the recipient to keep or store the declaration in such a way that it is accessible to him for a period of time appropriate for its purpose and the medium is suitable for reproducing the declaration unchanged, i.e. the text can be read again and again. Paper, floppy disks, USB sticks, CD-ROMs and memory cards are unproblematic permanent data carriers. An e-mail, SMS or WhatsApp message also complies with the requirements of text form because the recipient has the option of saving the message on his hard drive or server, or even in his own cloud. If the message is merely kept on the sender's website for the recipient to retrieve, this is not sufficient because the recipient cannot then keep the message and it cannot be guaranteed that the message remains unchanged.

In the meantime, the Federal Supreme Court tends to affirm text form for websites that are equipped with a personal login for the recipient (user password and password) and on which the recipient is instructed to download, save and print the message (Federal Supreme Court NJW 2009, 3227 (3228)).