SCHULTE RIESENKAMPFF Rechtsanwaltsgesellschaft mbH: Legal news Flash
In a recent case concerning a work contract about the object supervision of a bigger construction project, the Higher Regional Court Frankfurt decided that even the transmission of a letter of dismissal via email or computer fax meets the requirements of the agreed upon written form, being interpreted as a “telecommunication transmission“ within the meaning of Section 127 para. 2 of the German Civil Code. It was ruled to be irrelevant, if the letter of dismissal is first printed and then scanned or if the letter including its signature is produced mechanically. Caution: The letter of dismissal was not expressed in the text of the email (otherwise: textform, Section 126b of the German Civil Code)!
The parties agreed in the work contract to use the written form for the notice of termination. The principal terminated the contract by sending an email to the contractor. Attached to the email was a pdf-file, which contained the notice of termination, and also included the letter head and the necessary signatures.
Although the pdf-file itself is only a copy, it still meets the requirements of the written form! In principle, a work contract can be terminated without a form. In the present case, the parties had agreed upon the written form as a voluntary form (gewillkürte Form) within the meaning of Section 127 of the German Civil Code. If nothing else is agreed upon or a differing will cannot be gathered from the circumstances of the case, the written form is also fulfilled by a telecommunication transmission according to Section 127 para. 2 S. 1 of the German Civil Code. In practice, the modern technical standard is the telecommunication transmission via email or computer fax. The letter of termination itself must unequivocally indicate the sender (Federal Court, NJW 1999, 697), which is fulfilled by the pdf-file by providing a letter head and signatures, and must be sent in a form so that it can be permanently be stored and printed, which is fulfilled by the email. The Higher Regional Court Frankfurt did not see this issue as being problematic, therefore only issuing an indicative ruling according to Section 522 para. 2 of the German Civil Procedure Code – and thereby expressing, that the appeal against the legal validity of the termination would obviously be unsuccessful. The Court also referred to its prior decisions.
The email is specifically listed as an example in the reasoning of the draft bill (doc. of the German Bundestag, no. 14/4987). The German Federal Labor Court (case no. 5 AZR 888/08) and the Higher Regional Court Hamburg (case no. 2 W 35/13) were of the same opinion.
A differing opinion was held by the Higher Regional Court Frankfurt in 2012 in the case of the requirement of the written form of a notice of defects according to Section 13 para. 5 no. 1 VOB/B (IBR 2012, 386). Just as the Higher Regional Court Jena(1 U 209/15), it ruled a notice of defects via email as not fulfilling the requirements of the written form; instead a qualified electronic signature would be necessary. This decision draws the connection of the legally required (not just agreed upon by the parties!) written form to the qualified signature, if the electronic form (Section 126 of the German Civil Code) is supposed to replace the written form. Therefore, the above mentioned opinion of the Higher Regional Court Frankfurt can be viewed upon as persuading, but not yet as fully enforced. All in all, the basis of the form is to be noticed.