What does “in writing” mean in German and English law?

November 24, 2023 by Alison Tunley

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What does “in writing” mean in German and English law

Words do not have neat one-to-one mappings between languages. You do not need to be a very advanced language learner to be aware of that phenomenon, so it’s surprising how often this seems to trip up the unwitting translator. For example, German legal documents frequently distinguish between Schriftform and Textform, both of which refer to written texts of some kind. Both terms are often translated simply as “written form” in English, or alternatively as “text form”, which has pretty much the same meaning. But at least in some contexts, the German terms have a distinct sense that is important to convey.

An article by German legal firm adjuga makes this distinction clear, explaining that while the legal requirement for an instruction to be conveyed in Schriftform precludes the use of photocopied, fax or email instructions due to the absence of an in-person signature, a reference to Textform encompasses any non-verbal forms of communication. In other words, in a legal context Schriftform has a narrower sense than the English written form, which encompasses anything in writing. The common literal translation text form for Textform also fails to convey the intended distinction.

In German texts which specify both these options as legitimate forms of communication e.g. in a contract permitting changes to be made “schriftlich, mündlich, in Textform (E-Mail, Fax …)” the two terms can simply be combined in the English translation, for example by translating the text as “in writing (including email or fax), verbally …”. Here, two lexical items in German map onto one in the English. There is simply no need in English to find a second word in order to have the same number of items in the list as the German. The correct meaning is conveyed with the single item “written form”, helped along with the clarifying context in brackets.

On the other hand, if the intended purpose of the German text is to make different provisions depending on the nature of the written communication, the English will likely need to add explanatory text to ensure the reader understands precisely what forms of communication are permitted. Just because a translation works in one context does not make it acceptable in another. In fact the issue of whether written form could be construed as requiring some form of paper record or personal signature has helpfully been tested in the UK High Court (in C&S Associates v Enterprise Insurance). In this case, the contract stated that changes would only be effective if “made in writing and signed by or on behalf of each of the parties”. The judge ruled “I see no reason […] why documents in electronic form, in particular an exchange of emails, signed on behalf of both parties should not satisfy the requirements of the clause”.

In other words, “in writing” can include emails. And “signed” can include electronic email signatures. Since English does not have an equivalent to the pithy German Schriftform, you will need to spell this out explicitly if the intention is that writing should not include email or that signature refers to a physical manuscript signature, company seal or similar.

 

Image source: Pixabay.com

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