Term and Definition of Confirmation in Law
The term confirmation in the legal context refers to the express or implied declaration by a party that a specific action, declaration of intent, legal relationship, or contract is subsequently approved, endorsed, acknowledged, or regarded as binding. The confirmation often constitutes a subsequent consent or approval of an already executed action afflicted with a legal defect, and may, depending on the area of law, trigger various legal consequences.
Legal Classification of Confirmation
Distinction from Related Terms
Distinct from confirmation are terms such as approval, rescission, termination or revocation. While approval constitutes subsequent consent to a transaction that is provisionally void, confirmation often has a declaratory effect and can also have a constitutive effect, for example by excluding grounds for preclusion or subsequently validating a previously challenged or void declaration of intent. By contrast, rescission generally leads to the retroactive nullity of a legal transaction.
Function of Confirmation in Civil Law
In civil law, confirmation serves to subsequently treat a defective (e.g. voidable, void) legal transaction as valid. In particular, Section 141 of the German Civil Code (“Confirmation of a void legal transaction”) regulates the effect and requirements of confirmation. The function of confirmation thus lies in curing a formal or substantive defect and in preserving the continuity of legal relationships.
Confirmation in Civil Law (BGB)
Requirements and Scope (§ 141 BGB)
According to Section 141 (1) BGB, a void legal transaction can become effective by confirmation of the entitled party in such a way that the legal consequences of a renewed execution of the transaction arise. The confirmation is to be construed as a new declaration of intent, which expressly refers to the void transaction.
Requirements:
- Existence of a void legal transaction (e.g. due to lack of form, violation of prohibitive laws, etc.)
- Intent to confirm by the entitled party
- Reference of the confirmation to the underlying legal relationship
Legal Consequences:
- The confirmed transaction is treated as valid from the outset, unless a different agreement between the parties exists.
- A confirmation is generally also possible by implication, provided that the circumstances allow for inferring the corresponding intent.
Effect on Rescindability
Once a confirmation has been declared, it generally precludes a later rescission of the legal transaction (§ 144 BGB). Thus, if a voidable transaction is expressly or impliedly confirmed to the party entitled to challenge, with knowledge of the ground for challenge, the right of rescission is permanently extinguished.
Significance for Minors and Persons Without Legal Capacity
Special attention must be paid to confirmation in connection with Sections 108, 109 BGB (transactions by minors that are provisionally ineffective). Here, subsequent approval by the legal representative may also be regarded as a form of confirmation. However, strict formal requirements and prerequisites apply for validity.
Confirmation in Commercial and Corporate Law
Commercial Confirmation (§ 362 HGB)
In commercial law, confirmation is especially relevant in the context of confirmation letters. Pursuant to Section 362 HGB, a certain declaration, such as approval of a commercial power of attorney (Prokura), may be granted by way of subsequent confirmation. If a commercial agent becomes aware of a previously performed act afterwards, the implied acquiescence in the form of a confirmation can also legitimize the authority of representation.
Significance of Confirmation Letters
In commercial practice, confirmation letters may retrospectively document an existing oral contract in writing. Silence on such a letter by the contractual partner can, depending on the circumstances, be interpreted as implied confirmation of the contract conclusion, provided no deviating declaration of intent has been made.
Confirmation in Public Law and Procedural Law
Confirmation is also of importance in public law. For example, an authority may cure a defective administrative act by subsequent confirmation, whereby the original procedural errors are deemed cured (§45 VwVfG – Cure of procedural and formal errors). Furthermore, confirmation in administrative procedure may occur as a form of self-commitment by the authority.
In procedural law, a party’s procedural act (for example, confirmation of an application or a withdrawal of claim) may have a legally significant effect that substantially influences the course of proceedings.
Formal Requirements and Evidence of Confirmation
Confirmation generally does not require any special form unless the underlying legal transaction is subject to a formal requirement (§ 141 (2) BGB). In such cases, confirmation is only effective if the form prescribed for the basic transaction is adhered to.
Evidence:
The burden of proof for the existence of a confirmation generally lies with the party invoking the cure of the defect. Confirmation may be explicit (written or oral) or implied (by conclusive conduct).
Effects and Legal Consequences of Confirmation
Exclusion of Rights to Alter Legal Relationships
By making a declaration of confirmation, the right to rescind or assert the nullity of the transaction is generally excluded. This serves legal certainty and protects legal transactions.
Subsequent Cure and Continuance of the Transaction
Confirmation usually has constitutive effect, i.e., it creates rights directly and independently of retroactive effect to the earlier point in time of the contract conclusion. For third parties who relied on the existence of a declaration of intent, confirmation provides additional clarity in legal transactions.
Distinction from Similar Legal Doctrines
* Approval: Subsequent consent to a previously provisionally ineffective legal transaction. Usually takes effect retroactively from the time of the contract conclusion.
* Ratification: In international and public law, ratification denotes the subsequent confirmation of a contract by the competent state body.
* Reaffirmation: In insolvency law, a reaffirmation can effect the renewed recognition of a debt or obligation despite the occurrence of insolvency.
References
- BGB, § 141 – Confirmation of a Void Legal Transaction
- Palandt, Bürgerliches Gesetzbuch, § 141 BGB, Commentary
- Grüneberg, Bürgerliches Gesetzbuch, § 141, Note 1 ff.
- Commercial Code – HGB, § 362
- Administrative Procedure Act – VwVfG, § 45
Summary
Die confirmation is a significant legal institute, which is used in civil law as well as in other legal fields for curing defects, creating legal certainty, and securing legal transactions. Its effect is based on the express or implied will of a party to retroactively acknowledge a previously defective or uncertain legal act, thereby achieving legal clarity and practical manageability even in complex matters. The legal significance, prerequisites, forms, and consequences of confirmation are subject to the respective special statutory regulations and the systematic interpretation of the courts.
Frequently Asked Questions
What is the legal significance of a confirmation in contract law?
In contract law, confirmation generally serves as evidence or documentation that certain oral or written agreements have actually been concluded. It may be structured as an acknowledgment of receipt, order confirmation, or as confirmation of receiving services, and often serves as proof in case of a dispute. However, a confirmation usually does not replace the actual contract, but serves as a supporting document evidencing the formation of the contract, especially for contracts that do not require a specific form. In individual cases, a confirmation can also have a constitutive effect, particularly when statutory formal requirements must be met (e.g., to provide evidence of the receipt of a declaration of intent). Decisive in law is whether the parties involved have confirmed the content of the confirmation and whether it has actually been received in order to become effective.
What requirements does the law place on the form of a confirmation?
German law only recognizes special formal requirements for confirmations in exceptional cases. As a rule, confirmation may be given informally, i.e. orally, in writing, or in electronic form (§ 126 BGB et seq.), unless in exceptional cases a particular form (e.g. written form or electronic form with qualified electronic signature) is legally required. For some legal transactions, for example in real estate matters, consumer loans, or certain guarantees, a confirmation may only have legal effect if it complies with the legally prescribed form (e.g. written form according to § 492 BGB for consumer loans). Furthermore, it is crucial that the confirmation is clear, unambiguous, and consistent and correctly reflects the essential content of the contract and the parties involved, in order to have legal effect in the event of a dispute.
What are the consequences of an incorrectly or incompletely issued confirmation?
A confirmation issued incorrectly or incompletely can have substantial legal consequences. For one, there is a risk that it may be ineffective as evidence in a dispute or subject to challenge, since it does not accurately reflect the actual circumstances. An incomplete document may lead to an inability to prove essential parts of the contract, which often works to the detriment of the declarant. In some cases, this may even give rise to claims for damages if economic losses result from the faulty confirmation. From a legal perspective, it is therefore advisable to check confirmations carefully and, if necessary, correct or revoke them to avoid later legal disadvantages.
Can a confirmation replace a declaration of intent?
In legal terms, a confirmation is generally not a standalone declaration of intent, but refers to declarations of intent already made or legal transactions already performed. It therefore primarily has a declaratory effect and merely confirms the already existing legal state. In individual cases, however, a confirmation may also be interpreted as a new declaration of intent, particularly if the confirmation clearly indicates an intent to be bound and the requirements for such are met. For example, an inadvertent confirmation of a contract not yet concluded may, in certain circumstances, be interpreted as an offer that the recipient may accept. The exact legal effect thus always depends on the specific case and the interpretation of the confirmation.
What role does confirmation of receipt play in legal transactions?
Confirmation of receipt plays a central role in legal transactions, as it serves as proof that a specific declaration, item, or service has been received by the recipient. This is particularly relevant for contract performance, payment transactions, or delivery of important documents (e.g., terminations, reminders); the correct issuance and documentation of a confirmation of receipt is crucial. It protects the party bearing the burden of proof in the event of a dispute and can serve as important evidence in court proceedings. Note that presenting a confirmation of receipt merely documents the receipt of the respective declaration, but does not necessarily prove its content or legal effectiveness.
How long must a confirmation be retained?
The retention period for confirmations is essentially based on the statutory provisions applicable to business correspondence and records under commercial law (§ 257 HGB) and tax law (§ 147 AO). As a rule, business confirmations – such as order or receipt confirmations – must be retained for at least six years if they are considered commercial letters. However, if the confirmations contain accounting records or are relevant for taxation, a ten-year retention period frequently applies. In case of doubt, it is advisable to review the relevant regulations or one’s own compliance guidelines in order to avoid sanctions or loss of important evidence.
What legal consequences may arise from a confirmation not being given or being refused?
A confirmation that is omitted or explicitly refused can have various repercussions in legal transactions. Firstly, it can cause problems of proof, since in case of a dispute it is more difficult to demonstrate that a contract or service actually occurred or was delivered. In certain cases, such as commercial confirmation letters, silence on a confirmation may, in accordance with trade customs and circumstances, even be deemed consent if no timely objection is raised (§ 346 HGB, ‘commercial confirmation letter’). In consumer law, however, stricter requirements apply for the effectiveness and formation of contracts, so that a refused confirmation does not ordinarily entail legal disadvantages for consumers. In case of doubt, it is always advisable to protect one’s legal position by granting, documenting, or objecting to confirmations.
