Individual agreement
In the law of obligations, the individual contractual components negotiated between the contracting parties are referred to as individual agreements. This contrasts with the general terms and conditions , which are pre-formulated for a large number of contracts.
General
The legal term “individual contractual agreement” comes from Section 1 (2) of the General Terms and Conditions Act , which came into force in April 1977 and was transferred to the General Terms and Conditions of the German Civil Code in January 2002 . The individual contractual agreement is intended to identify the agreements specifically negotiated between entrepreneurs and other companies or consumers in contracts that are not intended as a standard formulation in forms or forms . For example, handwritten inserts in such forms are part of the individual agreement.
Legal issues
It is an individual agreement that can be concluded orally , through technical means of communication ( telephone , cell phone , etc.) or in writing . If the law does not prescribe a particular form, even the tacit individual agreement through coherent behavior is stronger than a contradicting written general terms and conditions. Due to the negotiating feature, individual agreements are not general terms and conditions and are therefore not subject to judicial content control in accordance with Section 305 ff. BGB. "Negotiation" is - at least for a not something easy to understand - that the user, the other Party of the content and scope of the supplementary agreement taught or has otherwise become as recognizable that the other whose meaning has really captured. Any contractual regulation can be the subject of such an individual agreement; Above all, it plays a major role in the purchase contract or employment contract . However, for an individual agreement, the Federal Labor Court (BAG) demands that it be negotiated by both parties, i.e. employees and employers together. If the purchase price was agreed in the purchase contract by means of an individual agreement, this applies instead of the purchase price printed on it.
Individual agreements are subject to freedom of contract , while general terms and conditions are only included in the contract under special conditions and are subject to special content control. Once an individual agreement has been made, it cannot be eliminated by means of general terms and conditions. That is why an oral individual agreement prevails over a pre-formulated written form clause. According to § 305b BGB, individual agreements always take precedence over (contradicting) terms and conditions. The burden of proof for individual agreements remains with the consumer.
Web links
- Ekkehart Reinelt: General Terms and Conditions or Individual Agreement? On the term "negotiating" BrBp, Heft 3 2004, p. 90
- Markus Lubitz: AGB or individual agreement? BGH tightened requirements for individual agreements October 1, 2005, to BGH III ZR 437/04
Individual evidence
- ↑ BGH NJW 2007, 2106.
- ^ BGH, judgment of May 19, 2005, Az .: III ZR 437/04 .
- ^ BAG , judgment of May 20, 2008, Az .: 9 AZR 382/07.
- ↑ Helmut Rüßmann : The conclusion of the General Terms and Conditions contract at Saarbrücken University , 2003
- ↑ BGH NJW 2006, 138.
- ↑ Kurt Schellhammer, Law of Obligations According to the Basis of Claims: BGB General Part , 2011, p. 1016.
