In constitutional states , the principle of freedom of contract is known as an expression of private autonomy , which allows everyone to conclude contracts that can be freely determined both with regard to the choice of the contracting party and the subject matter of the contract, provided that they do not violate mandatory provisions of applicable law. Only in the case of an obligation to contract can one not freely choose the contractual partner. Private households , companies or the state with its subdivisions ( public administration , state-owned companies ) come into question as contracting legal or economic entities. For example, private individuals conclude sales contracts with companies ( consumer-to-business ), companies conclude contracts of all kinds with one another ( business-to-business ), the public sector with non-public contractual partners ( administration-to-consumer , administration-to-business ) or States among themselves ( state treaties ). They are all contractual partners.
The parties to a business relationship are sometimes in Finance in financial contracts as a counterparty or counterparty referred. In procedural law , the legal subjects involved in legal proceedings are simply called parties .
To be allowed to conclude contracts, each contractor has his legal capacity (§ et seq. BGB ) - or at least limited legal capacity ( BGB) for certain types of contracts - evidence. Contractual partners do not have to act for themselves, but can act as representatives for third parties in the context of representation . Even the representative without power of representation (§ , and BGB) can act as a contracting party with the subsequent approval of the person represented or self-contracting ( BGB) is possible when fulfilling a liability .
The identity of the contractual partners must be clearly established in contracts by means of a legitimation check in order to record their full name / company and place of residence / place of business and to avoid confusion. In the case of substitution by representative's are powers ( international legal authority ) and the access to a public register ( Genossenschaftsregister , commercial register , partnership register , association register ) is required.
Due to the transparency requirement from Paragraph 1, Clause 1 of the German Civil Code, the contractual partners are obliged to present their rights and obligations in the contract as clearly and transparently as possible. Every main debtor is obliged to provide the agreed service to the obligee towards every other contracting party .
The appeal to an open lack of agreement is a violation of good faith and irrelevant if “one of the contracting parties only wants to evade its own obligations in this way, but wants to keep the advantages obtained from the agreement to itself”. It is also contrary to good faith to have the contractual partner conclude and fulfill a legal transaction in ignorance of its legal incapacity , to use the consideration for a large part for itself and later to claim the invalidity of the legal transaction based on the previously known legal incapacity when that behavior was in accordance with the alleged preconceived intention.
Typical contracting parties
Usually the contracting parties are named according to the type of contract they are entering into. For example, the contracting parties in a sales contract are buyer and seller , in a lease tenant and landlord , in a lease tenant and lessor , in an employment contract employer and employee , in an order client and contractor , in a treatment contract doctor and patient , in a marriage contract it is a spouse , in the loan agreement between the lender and the borrower , in the security agreement there is security seller and security buyer . In the case of a public law contract , at least one legal person under public law is involved as the contracting party .
These and other contracting parties first enter into contract negotiations, meet to conclude the contract and sign contracts that require the written form . Many everyday contracts also become legally effective verbally, with a handshake or through conclusive action .
Contracting parties enter into at least one legal relationship with one another, but usually also pursue economic interests. If there is no performance step by step as in the everyday purchase contract, but the delivery and payment conditions provide for payment terms or supplier credits, there is a performance risk for at least one of the contractual partners ( payment risk , delivery risk ). In order to reduce this, each contractual partner must check or have the other contractual partner checked for reliability or creditworthiness before the contract is concluded . In the case of a contract with the public administration , the private contract partner is completely relieved of the public authorities' insolvency . In banking , bankruptcy risk is known as counterparty credit risk or counterparty credit risk . Here is to central counterparty shall be a Party between seller and buyer that settlement risk ( English settlement risks ) do not occur.
- Michael Zwanzger, The multi-sided contract: basic structures, conclusion of contract, performance disruptions , 2013, p. 80
- BGH, judgment of January 20, 1954, Az .: II ZR 1/53
- BGHZ 44, 367
- Volker Schlette, The administration as a contractual partner , 2000, p. 374