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Paraphrase or signature, that is the all-important question

22. September 2021
From Probandt
Reading time: ca. 2 Minuten

For commercial leases, compliance with the written form determines whether the lease has a term of more than one year (§ 550 BGB). The written form requires, according to § 126 paragraph 1 BGB, that the document is signed by hand, that is, with his signature.

As it has become more and more common to sign relatively "freely", the question arises whether the thus created squiggles, hooks, serpentine lines and the like are to be considered a signature. The Federal Court of Justice (BGH XII ZR 26/20) took a resulting legal dispute as an opportunity to point out that a hand sign (paraphe) does not constitute a formally valid signature. At the same time, the BGH attempted to distinguish this form of name drawing from the signature that preserves the written form. For this purpose, it considers whether a signature has an individual character and enables a third party who knows the name of the signatory to read this name from the writing. The signature does not necessarily have to be legible, but at least individual letters must be recognizable - even if only hinting at them - because otherwise it would lack the characteristic of writing. The Federal Court of Justice applies a generous standard in this respect if there is no doubt as to the authorship and the intention to provide a full signature. On the other hand, in its opinion, writing that appears to be a deliberate and intentional abbreviation of the name (hand sign, paraphrase) does not constitute a formally valid signature. It is therefore based on the external appearance, so that even a highly simplified and illegible name can be recognized as a signature, if the signatory also otherwise signs in the same or similar manner.

Since the BGH's distinction between written form and handwriting (paraphe) raises more questions than it provides clarity, everyone is advised to take a little more time when signing contracts so that the scrawl is recognizable as a signature even to the layperson without the legal training of a BGH judge.

For questions on this topic, please contact attorney Dr. Probandt.

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