Especially when concluding utilisation agreements with landowners to secure land for wind farms and solar parks, it is important that the written form is observed. This is because a breach of the written form requirement means that contracts that are intended to be non-cancellable for a long period of 20 to 25 years can be terminated by the landowner at any time. Compliance with the written form requirement is therefore one of the key foundations for successful project development in the renewable energy sector.
Why is there a written form requirement at all?
The written form requirement, which is very strictly applied by case law, is not intended to protect either the tenant or leaseholder or the landlord or lessor. The purpose of the written form requirement is to protect a future purchaser of the property. This is because the purchaser of the property should be able to rely on all obligations and encumbrances arising from the long-term lease being presented to him in full in writing, so that he can make a decision on this basis as to whether he wishes to make this investment.
As a consequence, the purchaser of the rental property has the right to withdraw from the rental agreement if the written form required by § 550 BGB has not been complied with.
Signature of a rental agreement by a representative of a company
Particularly when usage agreements are signed by representatives of a company, care must be taken to ensure that the representation is properly notified. The BGH decided two interesting cases in this context in 2020.
Signing in own name for a GbR
In the first case, a partner with sole power of representation had signed the lease agreement for a GbR. The signature field only contained the name of the partner, but not the name of the company or any other addition. In contrast, the company was only named as the lessee in the contract rubric with the company name and address; the partners and the representation relationships were not named.
In this case, the BGH ruled that the required written form had not been complied with and that the contract could therefore be cancelled at any time on the following grounds:
The legal rule for a GbR is that all partners of the GbR must sign the contract (principle of joint representation). Therefore, if only one partner signs the contract, it appears that the signatures of the other partners are still missing and that the contract is not yet to be effectively signed for the GbR until it has been signed by all partners.
This appearance can only be refuted if the shareholder who signs the contract alone indicates in an addendum that he is authorised to represent the company alone. The BGH also allows the use of company stamps next to the signature as an alternative.
Practical tip for the GbR with sole power of representation:
Listing State the shareholder's sole power of representation in the heading or in the signature line, or
Use the company stamp when signing the list.
Signing in own name for a limited liability company
In the case of a GmbH, unlike a GbR, it is assumed that the signatory wishes to represent the GmbH even without an addendum. This is because § 35 GmbHG expressly stipulates that the GmbH can be represented by a single managing director.
Signature fields left blank
However, caution is advised if the contract contains several signature lines and signature fields are left blank. This was the case in the second case before the BGH:
A GmbH was represented by two managing directors with joint power of representation according to the rubric. Only one of the managing directors then signed the contract in the signature field provided for him, to which he added the company stamp. A second field, which was intended for the signature of the second managing director, was left blank.
In this case too, the BGH ruled that the blank signature field gave the impression that further signatures for the GmbH were missing, meaning that the contract was incomplete. As a result, the written form was not complied with.
And even if the signatory here had used a company stamp in his signature field, this stamp could not invalidate this appearance of missing signatures. According to the BGH, the stamp in the signature field can only prove that the signatory wishes to represent the company named in the rubric. However, it cannot make any statement as to the extent to which the signatory wishes to represent the other managing director or that he is authorised to represent the GmbH alone.
On the other hand, the BGH would have considered the written form to have been complied with if the signing managing director had made it clear with an addition that he was representing the second managing director or if he had simply crossed out the superfluous signature field.
Practical tip for the GmbH if not all signature fields provided are completed:
additionally sign on the blank signature field with the addition ‘i.V.’,
additionally sign on the blank signature field and add the company stamp, or
simply delete the blank signature line.
Actual representation relationships irrelevant for written form
The BGH also emphasised that it is not important for compliance with the written form requirement whether the signatory actually had the power of representation to sign on behalf of his co-shareholders or co-directors.
If you have any questions on the above topics, please do not hesitate to contact us - we look forward to hearing from you.