Germany: Compliance With Written Form In Case Of Undefined But Determinable Begin Of Lease

Last Updated: 3 April 2014
Article by Jürgen Streng
Most Read Contributor in Germany, September 2016

Keywords: tenancy, property, rental, lease

BGH (German Federal Court of Justice), ruling dated July 24, 2013 – XII ZR 104/12

With its July 24, 2013 decision, the Federal Court of Justice has confirmed its rulings of recent years for a practical interpretation of the written form requirement. With reference to rental start dates it has, based on a new configuration of its rulings, determined that it is sufficient if the start and end dates of the lease term are noted in a sufficiently clear way in the contract document at the time the contract is entered into (Ruling of February 24, 2010 IX ZR 120/06, NJW 2010, 1516 margin no.11 with further notes).


At issue was a lease with the following provisions:

"The and therefore the obligation to pay the rent, begins with the handover/takeover of the leased property.

If the handover/takeover is delayed due to changes requested by the tenant (...) or by failure promptly to submit the plans or documents required for the upgrading of the rental space (...) or through the late payment of the security (...), then the tenancy begins on the day on which the property would have been handed over in the absence of these alteration requests or had the documents or plans, and/or the bank guarantee been made available promptly. If the rent falls into arrears upon the takeover of the rental property, then the tenancy begins with the occurrence of a delay in accepting the property."

The lower court (Higher Regional Court of Hamm) had taken the view that the requirement for written form under Sections 550 and 578 BGB ["German Civil Code"] was infringed, as the tenancy may have begun to run from the time of a fictitious transfer. This additional agreement would have allowed the start of the lease to appear unascertainable. In particular, a purchaser bound, under Section 566 BGB, by the provisions of the lease, could be faced with considerable practical difficulties in trying to determine the date of the start of the lease. It followed that, due to the impossibility of determining the start of the lease the written form requirement had not been met.

Content and subject of the decision

In contrast, the Federal Court of Justice explains that the appeal court had placed excessively high demands on the concept of determinability. An abstract description, which makes it possible to determine the rental period, was sufficient. It is sufficient if the facts to which the contracting parties tie the beginning of the contract were determined sufficiently precisely for there to be no remaining doubt about the start of the contract once the contract is implemented. This is the case here.

This sufficient certainty of the start of the tenancy was also not called into question by the provisions in the second paragraph concerning the beginning of the rental period. These provisions also made it possible for a potential purchaser of the leased property to ascertain when the contract began. The purchaser is able to discern from the contract document in which cases the lease should begin before the actual handover, and it would be apparent to him which point in time should be used for the beginning of the contract instead of actual takeover. This is sufficient to satisfy the requirement for written form. The written form was, in particular, not subject to question simply as a result of the agreement on the contract start date containing terms of interpretation or the finding of whether the circumstances to which the parties had linked the start of the contract had actually occurred.

Impact on day-to-day practice

This ruling by the BGH deserves approval, in particular because for reasons of the legal certainty, practicality and manageability of leases, no excessively high demands should be linked to the written form requirement. This is because infringements of the written form requirement in practice do not usually concern the protection of a potential purchaser, but rather relate to the desire by one of the parties to the contract to be released early from the tenancy. Accordingly, the lease should contain no impractical requirements or requirements that bypass the legal reality concerning the determination of the start and end of the lease. Thus, for example, when the lease document provides for a renewal option in favor of a party, it is not clear from the document itself whether the option was exercised. The same applies to a longer-term lease, which provides that it becomes effective only upon the occurrence of a future condition. Should it be necessary to lay down all these facts in the lease document, this would result in high costs in relation to the addenda as well as a high degree of legal uncertainty with regard to compliance with the requirement for written form. For that reason, the BGH should be concurred with that it did not set the requirements too high, and thus ensured that the conclusion of long-term leases is legally secure.

Originally published on March 27, 2014

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2014. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.