Preliminary contract

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The preliminary contract ( Latin pactum de contrahendo ) is a law of obligations contract , by which the obligation Parties is established, another (different) law of obligations contract, the main contract to complete. It is an obligation transaction that is fulfilled by the conclusion of the main contract. So someone undertakes to commit again later.

General

The preliminary contract prepares the creation of a main contract. A contract under the law of obligations (such as the sales contract ), the fulfillment of which requires a real contract (in the example: agreement on transfer of ownership), is therefore not a preliminary contract . Since the preliminary contract establishes independent obligations under the law of obligations, the mutual claims from a preliminary contract are enforceable. With the exception of engagement ( § 1297 BGB ), it is not regulated in the law; however, its admissibility results from the principle of freedom of contract and from case law . Through him a contractually obligation is established. A negotiation obligation arises from the preliminary contract, the object of which is the contractual conditions , the regulation of which has been reserved by the contracting parties for the main contract and which must therefore only be set down in this. If a certain form is prescribed for the conclusion of the main contract , then this form must also be adhered to when concluding the preliminary contract.

content

The preliminary contract is not regulated by law, but it is a contract under the law of obligations that creates the obligation to conclude a main contract at a later date. A preliminary contract thus obliges the parties to conclude the main contract. A preliminary contract already contains the essential parts of the subsequent main contract. In this case, the execution of the main contract is enforceable in contrast to the mere declaration of intent or the memorandum of understanding . The conclusion of a preliminary contract is useful, for example, if the main contract still has actual or legal obstacles (e.g. the building permit ). In such a case, the obligation to conclude the main contract can be made in the preliminary contract subject to the condition that a certain event occurs or the obstacle ceases to exist. A preliminary contract can also be designed in such a way that only one party is bound, but the other does not assume any obligations to conclude a contract.

The Federal Court of Justice had to rule in a judgment of May 12, 2006 on a preliminary contract. It was about the "purchase option", which is not uncommon when purchasing real estate. Thereafter, a was notarially authenticated purchase option by the Supreme Court as a precedent related preliminary designed . According to the BGH, such an interpretation is not only possible, but also obvious because it is the only way to make the merely written declaration , which should be sufficient for exercising the option right after the purchase option agreed with the assistance of a notary, become effective. The parties are not prevented from entering into a preliminary contract initially only with regard to individual points and reserve the right to rectify the remaining points for a later agreement in the main contract. With regard to the notarial certification of the agreement, there is no doubt that the parties will be bound. Insofar as the details of the regulations to be met are reserved for a main contract to be concluded, the lack of agreement between the contracting parties only leads to the ineffectiveness of the preliminary contract if the parties have considered the point not regulated as essential.

In terms of content, it is also necessary, but also sufficient, that the essential components of the main contract and the obligation to reach an agreement on the further details of the contract to be concluded are specified. The only thing to note is that the preliminary contract must be drawn up in the form of the main contract, otherwise it is void due to a lack of form .

A typical pre-contract which is cover note of the insurer , which prior to the conclusion of an insurance contract and before payment of the first premium to the policyholder or the insured person's temporary coverage granted. It is a preliminary contract that results from Section 49 (1) VVG and is not binding on the policyholder.

Austria

According to Austrian law, essential points of the main contract are recorded in the preliminary contract . It represents an agreement (§ 936 ABGB ) for the conclusion of a main contract. If the main contract does not come about at the time agreed in the preliminary contract, an action can be taken to conclude the contract within one year. If this action is not filed within a year, the right to conclude a contract expires. If a contractual partner successfully invokes changed circumstances or the discontinuation of the business basis, the conclusion of the main contract cannot be forced. Fundamental legal or economic changes can be reasons for invoking the so-called "circumstance clause" ( Latin Clausula rebus sic stantibus ).

Switzerland

There are also contractual obligations to conclude a contract in the case of preliminary contracts in Switzerland , where the obligation to conclude a future contract can be established by contract (Art. 22, Paragraph 1 OR ). The preliminary contract for the conclusion of a main contract for the purchase of a property is referred to as a reservation agreement and requires a form (Art. 22 Para. 2 OR). It establishes a right of first refusal on the property in question.

Literature and case law

Individual evidence

  1. ↑ BGHZ 102, 384 , 388
  2. ^ BGH, judgment of May 12, 2006, Az .: V ZR 97/05
  3. ↑ so already BGHZ 97, 147 , 154
  4. ↑ BGH NJW 1990, 1234 and BGH NJW-RR 1993, 139, 140
  5. ↑ Ute Arentzen / Eggert Winter, Gabler Wirtschafts-Lexikon , 1997, p. 863
  6. ^ Erwin Deutsch, Das neue Versicherungsvertragsrecht , 2008, p. 157
  7. ↑ Maja Baumann: Reservation Agreement: Reservation Agreement for Real Estate Business September 4, 2017