No oral side agreements exist. But they do!

Background

So-called entire agreement clauses, for example:

• "No oral side agreements exist",

• "No oral side agreements have been made", or

• "Oral side agreements do not exist"

are intended, whether they are included as Standard Terms or individually negotiated, to confirm that the written contract contains all of the provisions the parties have agreed on with respect to the subject matter.

The German Federal Court of Justice (Bundesgerichtshof, BGH) has settled that such clauses merely restate the presumption of completeness and accuracy of the written contract that already applies in any event. They leave the party that wishes to rely on a different oral agreement the option to provide counter-evidence.

Case law

According to the BGH, an entire agreement clause cannot establish an irrebuttable presumption that no oral agreements exist. Nor can such a clause be read to mean that arrangements made during the pre-contractual negotiations no longer hold (see BGH, judgment of 3 March 2021 – XII ZR 92/19).

The BGH also makes clear that entire agreement clauses are invalid as Standard Terms. It bases this on the priority of individual agreements under Section 305b BGB, and also on Section 307 BGB and Section 309 No. 12 BGB. Under those provisions, Standard Terms that shift the burden of proof to the detriment of the other party are invalid, particularly where they require that party to confirm specific facts.

Reference: Poleacov, P. (2025). No oral side agreements exist. But they do!. INN.LAW. https://inn.law/en/perspectives/entire-agreement-clause/

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