BGH: Written form also satisfied with unilaterally signed lease agreements

Commercial tenancy law: The statutory written form requirement can also be satisfied by executing several identical copies of a lease agreement, with each party signing the copy intended for the other party. Receipt of these copies by the respective contractual partner is not required in this regard. This even permits an exchange of the respectively unilaterally signed lease agreement copies by fax.

Background: Further development of the “theory of external form”

In a widely noted decision, the BGH recently further developed its “theory of external form.” The BGH had already ruled in 2010 that a lease agreement complies with the statutory written form requirement if both parties have signed the lease agreement document, but the contract had not been validly concluded due to an excessively long period between the two signatures.
Although the conclusion of the contract had thus only occurred at a later point in time through conclusive conduct (in this case through the taking over of the rented premises) and therefore after the signing of the lease agreement document, the BGH nonetheless considers there to be a lease agreement complying with the written form, as the arrangements between the parties can be derived from a document that “externally” corresponds to the statutory written form.

New clarification by the BGH

The BGH now consistently continues this decision. It is also sufficient for compliance with the statutory written form that the content of the contract has been put in writing.
If not all contracting parties sign on a single document, this is the case where identical lease agreement copies exist, each signed by only one party. It is only required that all parties have signed an identical copy.
Receipt of the unilaterally signed copies by the respective other contracting party or parties is not required. In this way – according to the BGH – the acquirer protected by the written form requirement should be able to obtain knowledge of the contractual content.

Significance for practice

What does this mean for practice? On the one hand, the case law certainly facilitates matters when a lease agreement needs to be concluded quickly and the parties are not in the same location. In our view, it is highly advisable to clarify in the document

• that the signing of the document is to be carried out by means of unilaterally signed copies.
• Care should also be taken to ensure that these copies are fully exchanged.
• Even if not required for the written form, the contract only comes into existence once this exchange has taken place.

Furthermore, despite this “facilitation”, the conclusion of a contract in compliance with the written form can in future also only be proven court-proof if two (in the case of more than two contracting parties, all) unilaterally signed contract copies can be produced.
To make the result somewhat more tangible, the following rule of thumb suggests itself: The written form is satisfied if an acquirer is able to obtain information about the contractual content. For this purpose, it is sufficient if written declarations of the parties exist. The validity of the contract is irrelevant for the written form.
More on the topic:

• Written form goodbye – or maybe not?

Reference: BGH, Judgment of 7 March 2018 – VIII ZR 129/16 (NJW 2018, 1540)