No oral side agreements exist. However!

Background

So-called entire agreement clauses, e.g.

• "Oral collateral agreements do not exist",

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

• "Oral collateral agreements do not exist"

are aimed at confirming the fact that the written contract contains all the provisions agreed upon by the parties regarding the subject matter of the contract, whether they are included as standard terms and conditions in the contract or individually negotiated.

According to the case law of the Federal Court of Justice (BGH), it is established that such clauses merely reiterate the presumption of completeness and accuracy of the written contract document, which takes effect anyway. However, they leave the opposing party, who wishes to rely on a contradictory oral agreement, the opportunity to provide counter-evidence.

Case Law

According to the BGH, an entire agreement clause can not be used to infer an irrebuttable presumption that no oral agreements exist, nor can it be inferred that the arrangements made during the preliminary contractual negotiations between the parties no longer hold any validity (see BGH, decision of 3 March 2021 – XII ZR 92/19).

Furthermore, the BGH clarifies that such entire agreement clauses are invalid as standard terms. It justifies this by referring to the priority of individual agreements according to § 305b of the German Civil Code (BGB), as well as § 307 BGB and § 309 No. 12 BGB. According to these latter provisions, clauses in standard terms that shift the burden of proof to the detriment of the other contractual party are also invalid, particularly if they require the other contracting party to confirm certain factual matters.