Electronic contracts and signatures
Electronic contract availability
Are electronic contracts legally valid in your jurisdiction? If so, what rules and restrictions govern their formation (including any mandatory or prohibited provisions and contract formats)?
The validity of electronic contracts is based on the same principles as those applying to the validity of contracts in general. A contract is formed where one party makes an offer and another party accepts this offer (Sections 145 and following of the German Civil Code). The parties need to agree on the essential content of the contract. Also, the general rules regarding prohibited provisions apply (eg, the prohibition of legal transactions contrary to public policy according to Section 138 of the Civil Code or the rules on unfair consumer and commercial terms under Sections 305 and following).
Where statutory law requires a specific form (eg, written form or notarial form), electronic contracts are typically insufficient to form a valid contract. However, the statutory written form required can be replaced by certain electronic means by using a qualified electronic signature under Section 126a of the Civil Code, unless explicitly prohibited by statutory law. The technical requirements for a qualified electronic signature are set out in the Electronic Identification and Trust Services for Electronic Transactions in the Internal Market Regulation (910/2014/EU, eIDAS Regulation) and Germany’s Trust Service Provider Act.
Parties may voluntarily require a written signature, an electronic signature or even a qualified electronic signature.
Disputes over the formation of contract or due form will typically concentrate on matters of proof.
Are there any limitations or restrictions on transactions that can be concluded through electronic contracts?
Certain types of contract require a specific form by law. Typically, these requirements are tied to high-impact transactions (eg, acquiring shares in companies or purchasing property). If the form requirement is not met, the contract is invalid.
Do any data retention requirements apply to electronic contracts?
There are no retention requirements specific to electronic contracts. However, general retention requirements for business documents apply, which are rooted in merchant due diligence and tax regulations. Specific technical requirements for storing and accessing electronic contracts may have to be fulfilled (see the Principles for the Proper Management and Retention of Books, Records and Documents in Electronic Form and for Data Access set by the German tax authorities and applicable to business establishments in German, which can in some circumstances cover online business-related activities).
Are any special remedies available for the breach of electronic contracts?
Are electronic signatures legally valid in your jurisdiction? If so, what rules and restrictions govern their use?
Electronic signatures are generally valid, unless statute requires a more stringent form (ie, written) for specific contracts or transactions. Written signatures may be replaced by a qualified electronic signature pursuant to Section 126a of the Civil Code, unless explicitly prohibited by statute. The technical requirements for a qualified electronic signature are set out in the eIDAS Regulation and the Trust Service Provider Act. The statutorily required notarial form cannot be replaced in such manner.
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