Term Explanation: Original in the Legal Context
The term Original is used in the legal context to designate an object, document, or deed as the actually produced, authentic, and unaltered first piece. In contrast to copies or transcripts, the original has a special evidentiary function and legal significance. The precise definition, legal implications, and distinction from related terms are regulated in detail in various statutory instruments and areas of law.
Legal Definition and Distinction
Definition of the Term
In a legal sense, the original is a document produced directly by the issuing or authorized person or a workpiece created for the first time. It is the authentic first piece that serves as a reference for all further reproductions. Originals generally exhibit distinctive features, such as a handwritten signature, official seal, stamp, or specific security elements.
Conceptual Distinction: Copy and Transcript
In contrast to the original, copies or transcripts are merely reproductions. While a copy aims to transfer the external form as accurately as possible (e.g., photocopy, scan), a transcript only reproduces the text of the original, but without the characteristic physical features such as signatures or seals. By law, the evidentiary value and legal weight of the original are regularly rated higher than those of copies or transcripts.
Evidentiary Function of the Original in Civil Law
Documentary Evidence
In civil procedure law, the original of a document holds an outstanding position (§§ 415 et seq. ZPO). For documentary evidence, the original document must be submitted. According to § 420 ZPO, the original is regarded as the benchmark for assessing the authenticity and content of a document. Only when the original is presented can the presumption of substantive correctness apply.
Obligation to Produce and Request for Submission
The court may require the submission of the original, especially if doubts exist regarding the authenticity of a submitted copy (§§ 422, 424 ZPO). The duty to produce ensures a fair procedure and protects the authenticity of evidence.
Certified Transcripts
Certified transcripts hold a special position. They officially confirm the conformity with the original (§ 42 Notarization Act). However, even a certified transcript does not fully replace the original as evidence, but merely facilitates proof.
Original in Public Law and Administrative Proceedings
Significance for Official Documents
In administrative law, originals are particularly required for important personal certificates, diplomas, and official notifications. Submission of a copy is often permissible, but subsequent verification with the original may be required.
Law on Protection Against Forgery
The term original is closely linked to protection against document forgery (§ 267 StGB). Criminal law penalizes the creation and circulation of forged documents. Only the original can serve as the basis for verifying authenticity, which is why its distinctive features are of central importance.
Original in Copyright and Industrial Property Law
Original as First Work
In the field of copyright and industrial property protection, the term original refers to the first workpiece produced directly by the author or creator (§ 2 UrhG, § 6 Utility Model Act). Originals enjoy full protection here and are the starting point for all subsequent legal transactions (licenses, assignments).
Authenticity of Artworks and Objects
In art and cultural property law, the authenticity of an original is of significant importance, e.g., for provenance verification and exploitation rights. The assessment of whether a workpiece is truly an original can have serious civil law and financial consequences.
Electronic Original and Digitization
Concept and Legal Equivalence
With ongoing digitization, the electronic original is also gaining importance. Under § 126a BGB, an electronic document with a qualified electronic signature may be regarded as equivalent to the original. Electronic originals must meet specific technical and legal requirements for integrity and authenticity.
Evidentiary Value of Electronic Originals
In legal proceedings, electronically signed documents are recognized if they meet the requirements of the Signature Act and the eIDAS Regulation. Thus, digital originals are, in certain areas, equivalent to paper originals.
International Aspects
Recognition of Originals in International Legal Transactions
In international legal transactions, the question of whether a document is to be regarded as an original can play a significant role—for example, in connection with legalization or an apostille under the Hague Convention. The authenticity of the original is paramount, which often must be proven through additional certifications (legalization, apostille).
Conclusion and Summary
The concept of the original is central in law. It refers to the unaltered, authentic first version of a document, deed, or work and is essential for exercising, enforcing, and safeguarding rights. In the various fields of law—civil law, public law, copyright, industrial property protection, and international law—the original fulfills its own specific function. With digitization, the concept of the original increasingly extends to electronic documents, provided they meet legal and technical requirements for authenticity and integrity. The original thus remains an expression and guarantor of authenticity and legal validity in the legal sphere.
Frequently Asked Questions
What is the legal significance of an original document in civil law?
In civil law, the original document has a significant evidentiary function. It serves as direct proof of the authenticity and integrity of the contents of a deed, contract, or other document. Thus, in civil proceedings, under § 416 ZPO, a ‘private deed’ presented in original form is granted full evidentiary value for the authenticity of the declaration, provided it is presented in original and signed by the issuer. If only a copy is available, the evidentiary value is limited and authenticity may need to be proven otherwise. The original document therefore secures precedence in evidentiary matters, in particular over transcripts, copies, or digital reproductions.
When is it mandatory to submit an original?
In certain situations, submission of the original is mandatory, for example with notarially authenticated contracts (e.g., real estate purchase agreements), wills, or certain documents in commercial and corporate law. In order for authenticity and the issuer’s intention to be indisputably proven, authorities, courts, or other public bodies may also require submission of the original if proof of authenticity is needed. Also, in dunning procedures and documentary proceedings under the ZPO, submission of the original is regularly demanded.
How is the distinction made between original, certified copy, and officially issued copy?
The original is the document that has been personally signed or otherwise authenticated by the issuer. The officially issued copy is a special transcript created by a notary or court, provided with a certificate of issue, which can replace the original in civil law (§§ 47 BeurkG, 53 VwVfG). The certified copy is a transcript whose conformity with the original has been confirmed by a certifying authority, but it is not regarded as an equivalent replacement document in all legal contexts. Especially in documentary proceedings, the original or an officially issued copy is usually required, while certified copies are primarily used in administrative law and for submission to authorities.
What legal consequences result from submitting a forgery instead of an original?
Submitting a forged document in place of an original may have criminal consequences, especially under §§ 267 et seq. StGB (document forgery). In civil law, a forgery can render the underlying transaction void (§ 138 BGB) and trigger corresponding claims for damages. Furthermore, attempting to assert a claim in court with a forged original may be penalized as procedural fraud (§ 263 StGB), and may lead to denial of the asserted right in both court and administrative proceedings.
Can a digital document be an original in the legal sense?
Whether a digital document is recognized as an original must be considered from a legal perspective. Under § 371a ZPO, electronic documents bearing a qualified electronic signature are under certain conditions equivalent to the paper original. The eIDAS procedure also allows for such equivalence, provided the authenticity, integrity, and provable signing are electronically ensured. However, in some areas of law, such as inheritance law or corporate law, there remain formal requirements demanding a physical original.
What is the function of the original document in international legal transactions?
In international legal transactions, the original document serves as the basic requirement for the recognition of documents abroad. The original must often—in accordance with the relevant legal system—be provided with an apostille (under the Hague Convention) or legalization to prove its authenticity to foreign authorities. Mere copies are generally not accepted by foreign courts or authorities, as they cannot independently verify authenticity. Thus, the original document remains central for the legal validity of cross-border legal transactions.
Under what conditions may an original be destroyed?
Destruction of an original is legally problematic if its evidentiary function may still be needed. In civil law, there is generally no obligation to retain an original after expiration of statutory retention periods (e.g., 10 years for commercial letters under the HGB). However, if proceedings are pending, claims are possible, or proper evidence is required, the original must not be destroyed prematurely. For public deeds, notarial documents, or register records, there is even a continuing retention obligation by the responsible authorities or notaries. Unlawful destruction may result in disadvantages regarding evidence or even liability consequences.
