Commercial lease agreements - The problematic path from the written form to the text form
In the context of commercial lease agreements, it has long been criticised that the deficiency with respect to the written form requirement and the related termination option can be used as an excuse to withdraw from unpleasant long-term lease agreements whether this be by the tenant or by the landlord. Against this background, the courts have developed sophisticated, detailed case law without however being able to generally put an end to this termination option. Consequently, up to now, ordinary termination with notice was permissible by reason of an infringement of the written form requirement. Admittedly, the German legislator has now taken countermeasures - and yet legal uncertainties remain.
A need for reform
Policy makers have indeed likewise seen and discussed the problem of the deficiency with respect to the written form requirement for a long time already, but without fundamentally tackling it. Under the extensive fourth Bureaucracy Reduction Act (Viertes Bürokratieentlastungsgesetz) - which focuses on many fields of law, such as, for example employment law - specific changes have however now been made, in particular, to commercial tenancy legislation. The formal requirement for the conclusion of commercial lease agreements has thus been downgraded from the written form to the text form.
New legal situation since 1.1.2025
Commercial lease agreements that are newly concluded from 1.1.2025 will thus no longer require the written form, but instead merely the text from in order to be valid for a term longer than one year. Since most commercial lease agreements are concluded for long terms, frequently for 10-15 years with corresponding renewal options, this downgrading of the requirement from the written form to the text form has considerable practical implications.
The aim of the legislative amendment, besides ending the unilateral termination of agreements in the event of an infringement of the written form requirement, is also to pave the way for digitalisation. This is because, up to now, satisfying the written form requirement for an agreement meant that both parties provide a handwritten signature on the same document. Normally, it was therefore frequently necessary to exchange the respective signed documents by post - a purely digital dispatch was not an option. The legislator considered this to no longer be in keeping with the times and this has now changed via the downgrading to the text form requirement. Consequently, a purely digital exchange of the signed agreement documents is now possible.
Practical implementation in the case of lease agreements
While the legislative amendment is generally very much to be welcomed, in practice however there are still a considerable number of issues and pitfalls. For example, the legislation admittedly sets out specific rules as to how an agreement needs to be concluded in order to satisfy the written form requirement. However, for the text form requirement such legal rules do not exist. There merely has to be a legible declaration in which the individual making the declaration is mentioned and it must be submitted on a durable data medium. This has to be viewed against the background that the text form was created primarily for unilateral declarations, such as, for example, revocation in the case of consumer contracts, but not exactly for the conclusion of agreements. In this respect, problems are now definitely appearing in the practical implementation. The current unsolved issues that remain are, for example:
- Would an emoji sent via a messaging service be sufficient to be considered as acceptance of a contract, for instance?
- What would be the situation with a transcribed voice message?
