Individual agreement
Individual agreement is a term from the German law of the general terms and conditions . An individual agreement exists when both parties have explicitly or tacitly negotiated an agreement. It must be distinguished from general terms and conditions in which one party sets the conditions for the other.
The law mentions the individual agreement in § 305b BGB (formerly: § 4 AGBG ), but does not define it there.
According to § 305b BGB, an individual agreement takes precedence over the general terms and conditions. It is therefore a collision rule . It does not matter that the contracting parties have seen a possible contradiction to the general terms and conditions that were also agreed.
The interpretation of individual agreements takes place according to the general rules of § § 133 ff. BGB and not according to the general terms and conditions according to § 305c paragraph 2 BGB and § 306 BGB.
Special features are to be observed with a written form clause.
literature
- Felix Becker: The necessary boundary between general terms and conditions and individual agreements in business transactions , University of Siegen, dissertation 2010, Berlin, Münster, Vienna, LIT-Verlag 2011, ISBN 978-3-643-80088-6 .
- Beatrice Kolitz: Freedom of dismissal versus "non-terminability": a systematic consideration of dismissal restrictions by law, collective agreement and individual agreement; at the same time a critical examination of the handling of collective bargaining dismissal exclusions through jurisprudence and prevailing teaching , University of Augsburg, dissertation 2006, Nomos, Baden-Baden 2007, ISBN 978-3-8329-2750-9 .
- Tobias Miethaner: GTC control versus individual agreement: Purpose and limits of content control of pre-formulated clauses , University of Regensburg, dissertation 2008/09, Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-150331-3 .
