The associations' board of a golf club invited his members to a general meeting. They sent the invitations to the larger part of the members by email. In case they did not know the email address of one of the members, they decided to the send the invitations either by fax or by mail. As prescribed in the statutes of the golf club every member has to receive a written invitation to the general meeting. The members of the golf club who were present at the general meeting decided to change the Articles of Association. The association communicated the change of statutes to be registered to the local court Essen. With an interim court order the local court Essen decided that there was no regular invitation to the general meeting and therefore the change of statutes cannot be registered. Pursuant to an appeal by the association the supreme regional court Hamm annulled the decision made by the local court.
The Supreme Regional Court decided that the invitation to the general meeting was correct. Contrary to the private limited company, to the stock company or the cooperative society in the law of associations there is no form requirement as for the invitation to a general meeting. Therefore the invitation according to article 127 Civil Code is not to be considered incorrect. This standard requires the signature of the author on the document. According to article 127 Civil Code paragraph 2, p.1 in case of agreed written form the transmission using telecommunication means is sufficient. By sending an email we definitely can talk about transmission using telecommunication means. The regional Supreme Court justified the decision both with the history of the standard and with the purpose of the written form requirement. The regional Supreme Court Hamm refers to a similar decision made by the Regional Supreme Court Hamburg. (RSC Hamburg, ruling from May 06, 2015, reference number2 W 35/13, judicial officer 2013, 457 p.).
The article 127 paragraph 2 p. 1 Civil Code was given the present wording following a change in the law on August 01, 2001. In the past we found the word transmission by telegraph instead of transmission by telecommunication means. In the meanwhile it was generally recognised that not only the transmission by telegraph but also the transmission by telefax and teletext will satisfy the written form requirement. The legislator wanted to create a future proof standard in order not to preclude any kind of transmission using telecommunication means. Such a transmission is today the email.
The purpose of the contractual written form requirement does not permit any other interpretation. In economic dealings the written form requirement with the personal signature contributes to legal certainty. By inviting all the members of an association to a general meeting taking into account the written form requirement, it is established that every member of the association will be aware of the meeting. To guarantee this it might be possible to send the invitation by email.
By sending the emails the written form requirement was fulfilled and the local court had to register the change of statutes in the association register.
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