Contract amendment
A contract change is the subsequent change, adaptation or addition to an existing contract . In principle, the concluded contracts must be adhered to ( pacta sunt servanda ). However, within the scope of freedom of contract , the parties are free to amend the contract.
Amicable amendment to the contract
In any case, the amicable amendment of the contract is possible without any problems, i.e. if all parties agree to the contract amendment. In these cases, there is a so-called amendment contract (also: amendment contract ). Special features only apply here in a few exceptional cases:
In some cases, an amendment agreement requires a form . This is particularly the case if the original contract required a form. § 623 of the Civil Code (BGB) also writes for the so-called resolution agreement to end employment before the writing. The termination contract is a bilateral contract to terminate an existing employment contract , which comes into question if termination is not possible, not permitted or associated with other disadvantages , but ultimately the existing contract should no longer exist.
Unilateral contract changes
However, unilateral changes to the contract are generally not possible. Contracts remain effective and their content cannot be changed if one of the contracting parties is dissatisfied with the content of the contract. The most important exceptions to this are certain design rights such as withdrawal or termination , the effect of which on the contract can be brought about by a unilateral declaration by the person entitled.
Contract adjustment
In certain cases, however, a change of contract can be requested by any side, that one party has under certain conditions a claim that a contract is changed (adjusted). For example, the amendment of a land lease agreement in accordance with Section 593 of the German Civil Code (BGB) can also be requested by a party under special circumstances. Even if the business basis is disrupted in accordance with Section 313 of the German Civil Code (BGB), an amendment to the contract may be requested.
Notice of changes
An important problem area in labor law is the question of the admissibility of a change of termination (see § 2 of the Dismissal Protection Act ). This involves terminating an employment contract with the simultaneous offer to conclude a similar but modified contract . The aim of the change is often to agree a lower remuneration or to convert an open-ended employment relationship into a temporary one. In principle, the employee is not required to agree to the change. However, he must fear that if he does not agree, the contract will be canceled entirely. Strictly speaking, cancellations of changes are not a unilateral change in the contract, as the other party agrees to the change more or less voluntarily. Due to the factual constraint that the change termination exerts on the terminated party, this handling can appear like a unilateral contract change.
Explanatory fiction
In Austrian law, this describes a contract change that does not require an explicit declaration of intent. Section 6 (1) no.2 KSchG states that the entrepreneur grants the consumer a reasonable period of time for an express declaration after being informed about the expected change to the contract and - at the beginning of the period (!) - to the period and the meaning of his behavior particularly indicates.
Changes to the people involved
Amendment contracts can also concern a change or replacement of persons in a contract: in the case of a contractual claim, the creditor can be changed by assignment , the debtor by assumption of debt ; by transfer of contract , a Party may be replaced. It can also be agreed that another person should join in ( joining debt , joining the contract ).
literature
- Wolfgang Jakob Hau: Contract adjustment and adjustment contract , Mohr Siebeck, Tübingen 2003, ISBN 3-16-148091-0 (at the same time: University of Trier, habilitation thesis 2002).
