Classification of Law
Germany's legal system is a mixture of Roman civil law and Anglo-American common law systems. Civil law operates in areas such as family relations, property, succession, contract, and criminal law, while statutes and principles of common law origin are evident in such areas as constitutional law, procedure, corporations law, taxation, insurance, labour relations, banking and currency.
Civil law systems are based on concepts derived from old Roman law, distinguishable by their reliance on having a comprehensive set of rules and principles codified and easily accessible to both citizens and legal professionals. Codified laws are regularly revised to reflect the current environment, and have stronger emphasis in civil law countries than any precedent set by earlier court cases. Civil law countries cover more than 65% of world’s legal system, including the majority of continental Europe, Central and South America, the Middle East, Asia and Africa.
eSignature Legality Summary
Under German law, a written signature is not necessarily required for a valid contract - contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document (Sec. 125 and Sec. 126 German Civil Code). To prove a valid contract, parties sometimes have to present evidence in court. Leading digital transaction management solutions can provide electronic records that are - where presented on a data carrier or transmitted by email or otherwise- admissible in evidence under Section Sec. 371 para. 1 sent. 2 German Code of Civil Procedures, to support the existence, authenticity and valid acceptance of a contract.
In addition, Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (the “eIDAS Regulation”) came into force on 1 July 2016. The eIDAS Regulation repealed and replaced the e-Signatures Directive (1999/93/EC) and is directly applicable in the 28 member countries of the European Union.
The eIDAS Regulation is technology neutral and defines three types of electronic signature (SES, AES, QES). Article 25(1) provides that an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or does not meet the requirements of a QES. Articles 25(2) and (3) give a QES the same legal effect as a handwritten signature and ensure that a QES recognized in one Member State of the EU is also recognized in other Member States. Finally, Recital 49 allows national law to set requirements regarding which type of electronic signature may be required in which circumstances.
Use Cases for Standard Electronic Signature (SES)
Use cases where an SES is typically appropriate include:
- HR Documents, such as regular employment contracts (excluding fixed-term employment agreements, part-time employment agreements and temporary agency agreements), NDAs, privacy notices, employee invention agreements benefits paperwork and other new employee onboarding processes
- commercial agreements between corporate entities, including NDAs, purchase orders, order acknowledgements, invoices, sales agreements, distribution agreements, service agreements
- consumer agreements, including new retail account opening documents, sales terms, services terms, software licenses, purchase orders, order confirmations, invoices, shipment documentation, user manuals, policies
- real estate documents, including residential and commercial lease agreements
- intangible property agreements, including software license agreements and certain patent, copyright or trademark licenses
Use Cases for Other Types of Electronic Signature (e.g. Digital Signature, AES, QES)
Use cases where an electronic signature other than SES may be required include:
- QES - court briefs, pleadings and other procedural documents (Sec 130a German Code of Civil Procedure Zivilprozessordnung – “ZPO”), (Sec 46c Labour Court Act Arbeitsgerichtsgesetz – “ArbGG”) (Sec 55a Rules of the Administrative Courts Verwaltungsgerichtsordnung – “VwGO”) (Sec 41a Code of Criminal Procedures Strafprozessordnung – “StPO”)
- QES - consumer credit/loan agreements (Sec. 492 para. 1 sent. 1 German Civil Code)
- QES - receipts (Sec 368 BGB)
- QES - residential and commercial lease/rental documents, including:
- usufructuary leases (Sec 581 Para 2 BGB in conjunction with Sec 550 Sentence 1 BGB)
- leases based on stepped or index rent (Sec 550 Sentence 1 and Sec 557a Para 1, Sec 557b Para 1 BGB)
- notice of termination (Sec. 568 para. 1 German Civil Code)
- objection by lessee to termination (Sec 574b Sec 1 BGB)
- QES - temporary agency work agreement (QES or written form)(Sec 12 Para 1 Temporary Employment Act Arbeitnehmerüberlassungsgesetz – “AÜG”)
Use Cases That Are Not Typically Appropriate for Electronic Signatures or Digital Transaction Management
Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.
- Notarization - contracts to purchase or transfer real property (Sec. 311b para. 1 German Civil Code)
- Handwritten - contracts of surety (Sec. 766 para. 1 sent. 2 German Civil Code)
- Handwritten – standalone promise to fulfill an obligation (Sec. 780 sent. 2 German Civil Code)
- Notarization - domestic/family related acts, including marriage contracts (Sec. 1410 German Civil Code)
- Notarization - contracts of inheritance, contracts waiving inheritance (Sec. 2348 German Civil Code), inheritance sales (Sec. 2371 German Civil Code)
- Handwritten - acknowledgement of debt (Sec. 781 sent 2 German Civil Code)
- Handwritten - certain HR documents, such as termination notices (Sec. 623 German Civil Code) or agreements for lending employees or employment contracts that are limited in duration
- Handwritten - reference letter regarding performance under a service contract (Sec. 630 sent. 1 German Civil Code provides for a statutory entitlement for employees)
- Notarization - articles of incorporation of a company with limited liability (Sec. 2 para. 1 and Sec. 15 para. 3 Act on Limited Liability Companies)
- Notarization - assignment of shares of a company with limited liability (Sec. 2 para. 1 and Sec. 15 para. 3 Act on Limited Liability Companies)
 An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using means that are under the signatory’s sole control; and (d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.
 A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as ‘qualified’ by either that government or a party contracted by that government.
Local Technology Standards
As a Tiered eSignature Legal Model country, Germany supports the concept of a QES (Qualified Electronic Signature), requiring independent accreditation for those signatures by an approved certification body. QES is the only type of e-signature that satisfies the German written form requirement (Sec. 126 para. 3 in conjunction with Sec. 126a para 1 German Civil Code), i.e., if the law requires written form (and does not prohibit the use of electronic form). While QES is only legally required for limited types of transactions, Germany, as a member of the European Union, follows ETSI (European Telecommunications Standards Institute) standards to define the technical requirements for a QES. In compliance with the EU Regulation No. 910/2014 on Electronic identification and trust services for electronic transactions in the internal market, Germany maintains a publicly accessible list of supervisory bodies for qualified certificated providers together with other countries in the European Union.
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Last updated: October 29, 2018