215 LAW OF OBLIGATIONS (being uniquely linked to the signatory, being capable of identifying the signatory etc.). The only type of signature that has the same effect as a wet signature is a qualified electronic signature under Article 24 of eIDAS. The criteria that a qualified electronic signature should have are defined under Article 32 of eIDAS. Specifically, it must be based on a qualified certificate and such certificate must be issued by a qualified trust service provider. In terms of German legislation, the German Civil Code (Bürgerliches Gesetzbuch) (“BGB”)2 controls this matter. Under Article 126/1 of the BGB, if written form is prescribed by statute, the document must be signed by the issuer with his name in his own hand, or by his notarially certified initials. Written form may be replaced by electronic form, unless the statute requires otherwise. Pursuant to Article 126/a of the BGB, if electronic form is to replace the written form prescribed by statute, the issuer of the declaration must add his name to it and provide the electronic document with a qualified electronic signature. This provision, which is in compliance with eIDAS provisions, states that a qualified electronic signature has the same effect as wet-ink signature. Another important German law is the Trust Services Law (Vertrauensdienstegesetz).3 This law includes provisions for effective application of eIDAS regulations and consists of only 21 provisions. As for evidence law, the German Civil Code of Procedure (Zivilprozessordnung) (“ZPO”)4 has an important role. Under German law, which has adopted the conclusive evidence system, it is not possible to accept any other evidence other than the evidence specified under the law.5 Pursuant to Article 371/a of the ZPO, which is entitled “Evidence taken by visual inspection,” the rules concerning the evidentiary value of private records and documents shall be applied mutatis mutandis to private electronic documents bearing a qualified electronic signature. There is no provision on documents bearing a simple electronic signature. 2 https://www.gesetze-im-internet.de/bgb/ (Access date: 19.12.2021). 3 https://www.gesetze-im-internet.de/vdg/ (Access date: 19.12.2021). 4 https://www.gesetze-im-internet.de/zpo/( Access date: 19.12.2021). 5 Pekcanıtez, Hakan/ Atalay, Oğuz / Özekes, Muhammet: Medeni Usul Hukuku Ders Kitabı, Yetkin Yayıncılık, Ankara 2016, s. 408.
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