No individual agreement

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

Example

"Contractual Individual Agreement
Even though the terms and regulations of this framework agreement are set for all future orders, the parties explicitly declare by signing this framework agreement that the terms and regulations are discussed, negotiated, and jointly determined freely and openly in detail with the common goal of efficient future cooperation as individual contractual conditions."

2. Example

"The parties have negotiated all clauses of this confidentiality agreement after thorough discussion in the sense of § 305 Abs. 1 Satz 3 BGB, so an individual agreement is present."

Legal Assessment

The user attempts to establish an individual agreement with such contract clauses so that the contractual conditions used by them do not fall under the strict content control of AGB regulations.

According to § 305 Abs. 1 S. 3 BGB, general terms and conditions are not present as long as the contractual terms between the contract parties are negotiated in detail. According to constant BGH jurisprudence, "negotiation" means that the user seriously places the "alien" core content of the affected clause up for disposition and grants the contract partner freedom to design to protect their own interests. The contract partner must have the real opportunity to influence the substantive design of the clause. This is rarely actually the case.

The burden of proof that a clause was negotiated between the contract parties in any specific case rests with the user. High standards are set for proof of "negotiation."

Is such a clause truly suitable for establishing an individual agreement?

According to BGH's view, a statement presented by the user and signed by the contract partner, according to which all contract terms 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 (as already BGH, decision of 15 December 1976 – IV ZR 197/75; see also BGH, decision of 20 March 2014 – VII ZR 248/13 in a recent B2B case).

A template-based confirmation, wherein the contract parties allegedly negotiated all clauses, is, moreover, invalid according to § 309 No. 12 b) BGB (as already BGH, decision of 28 January 1987 – IVa ZR 173/85 regarding the former § 11 No. 15 AGB-Law). This applies at least to such negotiation confirmations also in B2B, because the term negotiation requires a closer legal interpretation, familiar to only a few entrepreneurs.

Ultimately, it is also inconsistent with the protective purpose of §§ 305 ff. BGB if contract parties independently from the preconditions of § 305 Abs. 1 S. 3 BGB exclude the validity of the law of general terms and conditions by individual legal agreements.

Summary

(Invalid) contract clauses have something in common with fashion: They always come back, even if only in new colors. The addressed clauses, stipulating that the contract conditions between the contract parties should be negotiated in detail, are not suitable for establishing an individual agreement.

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