The German Civil Code stipulates that for “Schriftform” a document “… must be signed by the issuer with their name in their own hand” (sec. 126 of the BGB). This means, that fax, e-mail, or text messages fail to satisfy this criterion. However, when “in writing” is used in English, this is a far broader concept, which ordinarily only means that something needs to be communicated in writing, as opposed to merely verbally. If any further stipulations are intended, then those need to be agreed and set out explicitly. Thus, “in writing” is more equivalent to the German “Textform”(sec. 126b of the BGB).
The English translation of the German Civil Code uses “written form” to translate “Schriftform”:
“If written form is prescribed by statute, the document must be signed by the issuer with their name in their own hand, or by their notarially certified mark.”(section 126 (1) of the German Civil Code).
This works within the context of the legislation, as the term “written form” is explained in the section where it is used. However, since the corresponding legal concept does not exist in most anglophone jurisdictions, using “the written form” in a translation, without providing any explanation or reference to the German concept of “Schriftform”, would not evoke the same associations from an anglophone reader. It is not merely a question of translating the terms, but of explaining a legal concept that may not exist in the other jurisdiction.
The translation poses challenges in both directions – when translating from German into English, an explanation of the concept (or at least reference to the relevant statutory provision) may be required. Translating into German, the danger is that a translation could be interpreted too narrowly, applying the German concept of “Schriftform”, even though the source text employed “in writing” in a broader meaning.
Even if one uses the more generic term “schriftlich”, that too can be seen to be ambiguous in German, as it is frequently construed by lawyers to mean “Schriftform”.
Conclusion:
Translating “Schriftform” into English as “in writing” or “in the written form” is insufficiently clear, as it fails to alert the reader to the fact that a very specific legal concept is meant, which is not immediately apparent from the English translation.
Translating “in writing” into German as “Schriftform” or even “schriftlich” can be dangerous, as it may cause German lawyers to construe the meaning far more narrowly than intended in the English source text.
Our recommendation would be to include a translator’s note along the lines of “…in the written form (“Schriftform”), as stipulated in section 126 of the German Civil Code” or “…schriftlich [A. d. Ü.: entspricht nicht der deutschen “Schriftform”).