Commercial contracts (B2B) often contain pre-formulated contractual clauses that are intended to establish an individual agreement.
Example:
"Individual contractual agreement
Even if the terms and provisions of this framework agreement are stipulated for all future orders, the parties explicitly declare by signing this framework agreement that these have been freely and openly discussed, negotiated and jointly stipulated in detail as individual contractual terms and provisions with the common goal of efficient future cooperation."
2nd example:
"The parties have negotiated all clauses of this confidentiality agreement after thorough discussion within the meaning of Section 305 (1) sentence 3 BGB, so that an individual contract exists."
With such contractual clauses, the user attempts to establish an individual agreement so that the contractual terms used by him are not subject to the strict control of content under general terms and conditions law.
According to Section 305 (1) sentence 3 BGB, general terms and conditions do not exist if the contractual conditions have been negotiated in detail between the contracting parties. According to established BGH case law, "negotiation" means that the user seriously puts the "non-statutory" core content of the clause in question up for negotiation and gives the contractual partner freedom to protect their own interests. The contractual partner must have the real possibility of influencing the content of the clause. This is rarely actually the case.
The burden of presentation and proof that a clause was negotiated between the contracting parties in a specific individual case lies with the user. High demands must be placed on the proof of "negotiation".
Is such a clause really suitable for establishing an individual agreement?
According to the BGH, a declaration submitted by the user and signed by the contractual partner, according to which all contractual conditions have been negotiated, has no probative value; it is neither proof of the existence of an individual agreement nor does it lead to a reversal of the burden of proof (see already BGH, judgment of. 15.12.1976 - IV ZR 197/75; see also BGH , Urt. v. 20.03.2014 - VII ZR 248/13 in a more recent B2B case).
A confirmation in a form, according to which the contracting parties have allegedly negotiated all clauses, is also invalid according to Section 309 No. 12 b) BGB ( BGH, Urt. v. 28.01.1987 - IVa ZR 173/85 on the then § 11 No. 15 AGB-Gesetz). This also applies to such negotiation confirmations in B2B because the term "negotiation" requires a more detailed legal interpretation that only a few entrepreneurs are familiar with.
Finally, the protective purpose of Sections 305 et seq. BGB if contracting parties exclude the application of the law on general terms and conditions under individual law irrespective of the requirements of Section 305 (1) sentence 3 BGB.
Summary
(Ineffective) contractual clauses have one thing in common with fashion: they always come back, even if only in new colors. The clauses in question, according to which the contractual conditions are to be negotiated in detail between the contracting parties, are not suitable for establishing an individual agreement.
It is still possible to reach an individual agreement, but this requires a better strategy.
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