Legal validity vs. provability of the signature
Before we talk about the scanned signature, it is important to be able to distinguish between the concepts of legal validity and provability. It is not uncommon for these terms to be confused with each other or used as synonyms. But their meaning is very different.
Legal validity
A valid contract exists when there are concordant declarations of intent. The law grants the contracting parties freedom to decide how declarations of intent can be concluded. Contractual partners can decide for themselves whether they conclude an agreement orally, in writing on paper or electronically.
However, there is a written form requirement for some documents. In this case, a declaration of intent can only be signed by hand on paper or digitally with a qualified electronic signature.
A scanned signature is not legally valid here. For documents without a written form requirement, a scanned signature is legally valid. However, the question of provability arises.
Provability
A fact is provable if something can be understood through facts and evidence. A scanned signature has very little provability because it is merely an image of the signature. No other data is collected and attached to the document.
Data that increase the provability of digital signatures are, for example:
- Writing speed
- Writing direction
- Writing breaks
- Digital certificates
- Audit logs
- Email addresses
- Telephone numbers
- Date
- Time
- GPS data
- Devices used
- Software used
Examples: Is a scanned signature legally valid?
In principle, scanned signatures are valid unless the declaration of intent is required to be in writing. Despite the low provability, the scanned signature is often accepted in practice, for example in associations for membership applications or generally for offers.Examples: invalid scanned signature
A scanned signature is not legally valid if the written form is required by law. This concerns, for example, fixed-term employment contracts, guarantees, life insurance on the life of third parties and terminations, etc.
The following are two exciting court rulings:
Regional Labour Court ruling: Fixed-term employment contract with scanned signature deemed invalid
In the 16 March 2022 ruling (Berlin-Brandenburg Regional Labour Court), a scanned signature in a fixed-term employment contract was declared invalid.
The case concerned an employee who worked for a temporary employment agency and brought an action against the most recently agreed fixed-term employment contract. She believed that the written form has not been respected. The documents were only scanned and delivered electronically to the employee. She had not received the original contract in paper form. The court agreed with her that this was unlawful, as there is no personal authenticity in a scanned signature.
According to § 126 BGB (German Civil Code), the written form would be required, i.e. a handwritten signature on paper or a qualified electronic signature with subsequent transfer of the paper documents to the employee.
Regional Labour Court ruling: WhatsApp termination invalid
In the 28 October 2021 ruling (Munich Regional Labour Court), employment termination via WhatsApp was declared invalid.
The employer sent the employee a notice of dismissal via WhatsApp because he showed up for work drunk. The employer photographed the letter of termination and sent it as a photo in WhatsApp. It was not sent by post because the employer did not know the employee’s address.
The Regional Labour Court did not make an exception here. Termination via WhatsApp is invalid, as § 126 para. 1 BGB (German Civil Code) requires the written form.
Advantages of an electronic signature solution
Inserting a scanned signature into a PDF or Word document is a common practice. Unfortunately, there is a lack of provability here. With an electronic signature solution, legally binding and provable contracts can be concluded quickly, easily and without complications.- No printer or scanneris required for the electronic signature. The process is electronic throughout.
- The advanced and qualified electronic signature is eIDAS-compliant and provable.
- Qualified electronic signatures must be used for documents that require the written form.
- Electronic signature solutions can be integrated into existing systems.
- No media breaks – you work completely digitally.
- Returns can be avoided with e-signature solutions.
inSign is an electronic signature solution from Germany with servers in Germany. It is legally secure, provable and eIDAS-compliant. The software offers numerous functions , can be used directly on the web or integrated into your own software.
FAQ & summary
A scanned signature is legally valid if the law does not stipulate a written form for the declaration of intent. However, the signature is barely provable, as it is only an image of the signature.
The scanned signature is not legally effective if the written form is required for the declaration of intent. This is the case, for example, with dismissals, fixed-term employment contracts and guarantees.
Alternatives to the scanned signature are advanced or qualified electronic signatures. Both types of signatures are provable. The qualified electronic signature is equivalent to a paper signature.
Do you have a question that hasn’t been answered? Feel free to write to us! We’ll make time for you.
Would you prefer to work with electronic signatures in the future? Try out our software free of charge.
Would you prefer to work with electronic signatures in the future? Try out our software free of charge.
About the author
Christina Detling – Online Marketing Specialist
Christina has been working at inSign for over four years and is happy to pass on her knowledge of electronic signatures and digitisation.
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