Definition and Legal Significance of Confirmatory
The term Confirmatory (German: “confirming” or “confirmation”) is used in a variety of legal contexts, particularly in Anglo-American law and increasingly in continental European legal transactions. The term encompasses various forms of confirmatory actions, declarations, and documents that carry legal significance in the context of contractual and pre-contractual relationships, in procedural law, and in evidentiary matters.
Confirmatory in Contractual Relationships
Confirmatory Instruments
In contract law, “Confirmatory” often refers to so-called Confirmatory Instruments. These are documents or written records that confirm agreements, obligations, or arrangements that have already been made and thereby record them as binding for the contracting parties. Such documents consolidate the existing legal situation and can be used as evidence in possible legal disputes.
Legal Effect and Binding Nature
A Confirmatory Instrument serves to confirm and clarify an existing legal relationship. Its legal effect stems from the underlying contract or original agreement. As a rule, the Confirmatory Instrument is declaratory in nature. This means it merely clarifies the current status and does not create new obligations, provided its content matches the original agreement.
However, deviations or additions in the Confirmatory Instrument may have a modifying effect (by way of novation or supplementation) and bring about legally binding changes. In this case, the document must be carefully interpreted to determine the resulting rights and obligations.
Examples of Application in Contract Law
- Confirmation Letters in commercial transactions, which are used to document the content after a verbal contract has been concluded
- Confirmatory Orders in international commercial law, e.g., for final verification of order terms
- Confirmatory Assignment when transferring rights (e.g., industrial property rights), in order to reflect and confirm a transfer that has already been executed
Confirmatory in the Law of Evidence
Function as a Means of Confirmation
In the law of evidence, Confirmatory Statements or Confirmatory Affidavits are used to confirm facts outside of formal legal proceedings. These are written declarations in which witnesses or third parties confirm a particular event, fact, or legal relationship as correct.
Recognition and Evidentiary Value
The legal requirements for a Confirmatory Statement depend on the applicable procedural rules. While “Confirmatory Affidavits” are recognized as evidence in Anglo-American common law, their evidentiary value is limited in German civil procedure law. Here, they primarily serve as an indication or documentary evidence pursuant to §§ 415 et seq. ZPO and can support judicial decision-making, but do not replace formal witness testimony.
Confirmatory in Corporate Law
Areas of Application and Legal Effect
In corporate law, Confirmatory appears in the context of Confirmatory Resolutions or Confirmatory Minutes . These are minutes or resolutions that subsequently confirm decisions already made by the shareholders’ meeting or the supervisory board. Such confirmation may be required if there are doubts about the validity of the original resolution or if formal requirements were not fully met.
Legal Safeguarding of Corporate Decisions
By means of the Confirmatory Instrument, the decision-making body declares its intention once again, thereby securing the effectiveness of the decision and eliminating potential legal uncertainties for management and shareholders.
Confirmatory in International Legal Transactions
Role in Common Law
In common law, particularly in Anglo-Saxon contract and commercial law, Confirmatory occupies a prominent position as an independent legal concept. For example, a Confirmatory Deed can serve as an instrument that retroactively secures and documents specific legal effects (e.g., transfers or acknowledgements).
Significance in European Law
Confirmatory Instruments are also gaining importance in the European legal area, for example, in the context of cross-border contracts and the harmonization of international commercial law. The recognition of such documents depends on their implementation into the national law of the participating state and on international agreements.
Confirmatory in Practice: Risks and Drafting Issues
Formal Requirements and Scope for Drafting
The drafting of a Confirmatory Instrument should always consider formal requirements (written form, signature, if applicable notarization) and be based on the interpretation of the underlying legal transaction. Especially in international matters, care should be taken that the confirmation is also recognized under the respective legal system.
Risks of Incomplete or Contradictory Confirmation
Conflicts between the original agreement and the confirmatory document can create legal uncertainty or even disputes. In such cases, careful review and, if necessary, a clear distinction between confirmation and new declaration is required.
Distinction from Related Terms
Declaratory and Novatory
The term Confirmatory is to be distinguished from related terms such as “Declaratory” (ascertaining) and “Novatory” (renewing, modifying). While Confirmatory affirms an existing legal situation, “Declaratory” merely ascertains without substantive confirmation, whereas “Novatory” entails a substantive change or renewal.
Conclusion
“Confirmatory” is a central term in international and national legal transactions that claims legal significance in various contexts. Its function lies primarily in the confirmatory documentation of already existing legal relationships and obligations, but depending on its formulation, it can also have a modifying effect. The legally secure handling and interpretation of Confirmatory Instruments is an important part of contractual and transactional practice, where the applicable national and international legal norms must always be observed.
Frequently Asked Questions
What legal requirements apply to the use of confirmatory e-mails in contractual relationships?
In a legal context, when using confirmatory e-mails—i.e., confirmation messages following oral or telephone agreements—one must particularly observe requirements of transparency and evidentiary function. According to § 126b BGB, declarations of intent that require text form must be drafted clearly, understandably, and in a way that is comprehensible to the recipient. The confirmatory e-mail should include all relevant contractual components to avoid future disputes over contractual content and to serve as permissible evidence in disputes. Special attention should also be paid to handwritten or electronic signatures, where special form requirements exist. In international e-commerce, additional regulations such as those from the eIDAS Regulation or the UN Convention on Contracts for the International Sale of Goods may apply if parties from different countries are involved. Missing or unclear confirmation e-mails can, in cases of doubt, lead to legal uncertainty regarding the formation or content of a contract.
What role do confirmatory e-mails play as evidence in disputes?
Confirmatory e-mails play a decisive role in documentation and securing evidence in disputes. In civil proceedings, they serve as documents within the meaning of § 416 ZPO if they are stored permanently and are traceable. However, their evidentiary value depends on the authenticity and integrity of their content. If there are doubts as to authenticity or delivery, the sender may have to provide further proof such as transmission logs or witnesses. There are also differences between e-mails with a qualified electronic signature and simple e-mails, as the former carry greater indicative value. Including all contract details in the confirmatory e-mail is therefore advisable to establish the broadest possible evidentiary basis. In commercial law (§ 362 HGB), silence in response to a commercial confirmation letter may be deemed acceptance when communication occurs between merchants.
What legal risks are associated with incomplete or incorrect confirmatory e-mails?
Incomplete or incorrect confirmatory e-mails carry the risk that essential contractual details are either not documented or are documented ambiguously. This becomes legally significant in later disputes regarding the contractual content or the formation of the contract. For example, if a diverging contract text is confirmed and the recipient does not object, this may, under the commercial confirmation letter clause, be regarded as acceptance. In the worst case, a faulty confirmatory e-mail may result in a contract being accepted with differing content, potentially leading to extensive liability and compensation claims. Particular caution is needed concerning deviations in price, scope of services, terms, or termination modalities. Therefore, companies should act carefully and according to standards to minimize the risks of misunderstandings and legal disputes.
To what extent is a confirmatory e-mail legally relevant for the receipt of declarations of intent?
The legal relevance of confirmatory e-mails with respect to the receipt of declarations of intent is determined by § 130 BGB. A declaration of intent only becomes effective when it reaches the recipient. A confirmatory e-mail can document the receipt of new or confirmed information, but it is crucial that the recipient actually receives the e-mail. In case of doubt, a transmission log alone is not sufficient proof of receipt; ideally, the sender should obtain an acknowledgment of receipt. In business transactions, it is advisable to use read receipts or send by registered mail with return receipt, if the form or content of the contract requires it. In purely electronic communication, issues of receipt are often contentious, which is why documentation of the time of sending and receiving plays a central role.
Do confirmatory e-mails have to meet special data protection or confidentiality requirements?
Confirmatory e-mails are subject to data protection law, particularly the GDPR and the new Federal Data Protection Act (BDSG-neu). Personal data may only be processed if there is a legal basis, such as for the fulfillment of a contract (Art. 6(1)(b) GDPR). The e-mails must also be designed so that unauthorized third parties do not gain access to sensitive information. Encrypted e-mails are recommended for sending, especially with confidential contract data. Lack of security measures may result in liability claims for breach of contract or violations of data protection law (§ 82 GDPR). Storage of confirmatory e-mails must also comply with data protection requirements, i.e., with effective deletion procedures after statutory retention periods expire. Companies should regularly train employees on confidentiality and proper handling of confirmatory e-mails.
Can confirmatory e-mails substitute for a written contractual form?
Whether confirmatory e-mails can substitute for a written contractual form depends on the statutory form requirements. For many contracts, text form (§ 126b BGB) is sufficient under German law, which can be fulfilled by an e-mail. However, where contracts expressly require written form (§ 126 BGB), such as for guarantees or real estate purchase agreements, a handwritten signature is necessary and an e-mail is insufficient. An electronic form with a qualified electronic signature may replace the written form if both contracting parties agree and there are no statutory exceptions. In practice, confirmatory e-mails serve mainly as evidence, but legal form requirements must always be reviewed and, if necessary, supplemented. Foreign form requirements must also be considered in international correspondence.
