No individual agreement

In business contracts (B2B), pre-formulated contract clauses are often found, which are intended to establish an individual agreement.

Example

"Individually negotiated agreement
Even though the terms and provisions of this framework contract are set for all future orders, the parties expressly declare by signing this framework contract that these terms and provisions were discussed, negotiated, and jointly determined freely and openly with the common aim of efficient future cooperation as individual contractual conditions and provisions."

2. Example

"The parties have negotiated all clauses of this confidentiality agreement thoroughly within the meaning of § 305 para. 1 sentence 3 BGB, so that an individual contract exists."

Legal Assessment

The user tries to establish an individual agreement with such contract clauses so that the contract terms used are not subject to strict content control under the general terms and conditions law.

According to § 305 para. 1 sentence 3 BGB, general terms and conditions are not present as long as the contract terms are individually negotiated between the contracting parties. According to constant BGH case law, "negotiation" means that the user seriously puts the "non-statutory" core content of the affected clause up for discussion and grants the contracting partner design freedom to protect their own interests. The contracting partner must have the real possibility to influence the substantive design of the clause. This is rarely actually the case.

The burden of proof that in a specific individual case a clause was negotiated between the contracting parties lies with the user. High demands are placed on the proof of "negotiation".

Is such a clause actually suitable to establish an individual agreement?

According to the BGH, a statement presented by the user and signed by the contracting partner, according to which all contract terms have been negotiated, has no evidential value; it neither serves as proof of the existence of an individual agreement nor leads to a reversal of the burden of proof (as already BGH, Judgment of 15.12.1976 – IV ZR 197/75; see also BGH, Judgment of 20.03.2014 – VII ZR 248/13 in a more recent B2B case).

A standard form confirmation, according to which the contracting parties allegedly negotiated all clauses, is otherwise invalid under § 309 no. 12 b) BGB (as already BGH, Judgment of 28.01.1987 – IVa ZR 173/85 concerning the former § 11 no. 15 AGB-Gesetz). This applies, in any case, to such negotiation confirmations even in B2B, because the term negotiation requires closer legal interpretation with which only a few entrepreneurs are familiar.

Finally, it is also not compatible with the protective purpose of §§ 305 ff. BGB if contracting parties exclude the application of the law on general terms and conditions independently of the requirements of § 305 para. 1 sentence 3 BGB by means of individual rights.

Summary

(Ineffective) contract clauses have something in common with fashion: They always come back, if only in new colors. The mentioned clauses, according to which the contract terms between the contracting parties should be individually negotiated, are not suitable to establish an individual agreement.

The path to an individual agreement is still possible, but it requires a better strategy.