As per 1 October 2016 the new Sec. 309 No. 13 BGB will be entering into force. Pursuant to the old version, clauses which envisaged a more stringent form than the written form for a notice or declaration of the consumer were invalid (cf. Sec. 126 BGB). With the legislative amendment it will no longer be possible to agree on a more stringent form than text form within the meaning of Sec. 126b BGB. The text form requirement is deemed to be sufficiently met inter alia by e-mail or (computer) fax. This legislative amendment will have considerable effects upon the structuring of contracts, in particular on exclusion periods, and should therefore be observed when concluding new contracts (as of 1 October 2016), respectively when amending existing contracts (concluded until 30 September 2016).
If an employment contract concluded after 30 September 2016 stipulates the written assertion of due claims, this written form requirement will be invalid pursuant to the new Sec. 309 No. 13 BGB. Hence, every notice, even an oral notice, suffices to observe the deadline. Although this should not lead to the invalidity of the entire exclusion clause, since the clause is also still comprehensible in itself without the written form requirement (so-called blue pencil test). Nevertheless, in future, preclusive periods in standard form employment contracts should only contain a text form requirement.
The new provision has no effect upon existing contracts, for pursuant to the transitional regulation in Art. 229 Sec. 37 EGBGB which is simultaneously entering into force, the amendment of Sec. 309 No. 13 BGB applies only to “contractual relationships established after 30 September 2016”. Previously agreed written form requirements in exclusion clauses therefore remain valid. However, should an existing agreement be amended after 30 September 2016, then this protection could presumably be lost. This means that the preclusive period should better be adjusted at the latest with the contractual amendment (see also under point 1.1).