BUSE HERZ GRUNST Law firm advices clients on all question of contract law.
A contract is a transaction in which both parties commit to perform. Contracts are the basis of economic and social life and arrange the mutual obligations.
In Germany prevails fundamentaly the private autonomy, which means that every person is free to choose with whom he or she wants to conlcude a contract. The private autonomy reffers to both the contractor and the content of the contract. However, as this not only brings freedom, but at the same time dangers, rules on the conclusion of the contract , the basic rights and obligations of the parties and the limits of freedom of contract are governed by the Civil Code (BGB).
Conclusion of the contract
Obligation law contracts are concluded through offer and acceptance. Legally this is done by two matching content related declarations of intent. It is crucial that the contract would contain the minimum content (so called Essentialia negotii). The essentialia negotii of a contract are usually the performance, counterperformance and indication of the parties. In the case of purchase agreement, the names of seller and buyer, exact description of the object and the amount must be stated.
General Terms and Conditions
In the commercial sector is usual to conclude many contracts in short periods of time. That contracts would not need to be negotiated with each individual over and over again, the Civil Code (BGB) provides the opportunity to use general Terms and Conditions (GTC ). General Terms and Conditions (GTC ) are all pre-formulated for a variety of contracts which a party represents to the other party at the conclusion of a contract. So that this does not lead to preferential treatment of and discrimination against a party, the legislature provides various control mechanisms for the use of such standard terms.
Therefore, the attention to the legal requirements should be paid while using GTC, because if the clause is ineffective, it will be replaced by the corresponding legislation. Usually this does not reflect the will of the parties.
If obligations in contract are being violated, the creditor is entiteld to a variety of rights. To find out what these rights are, it needs to be clarified first , what kind of violation has been made.
Because the law provides different legal consequences, depending on whether a non- performance , defective performance , so-called impossibility, to – late – performance, protection breach or disruption of purpose has occured. Conceivable are, inter alia compensation for damages instead of (contractual) performance, compensation for damages besides the performance (for example by delay), withdrawal from the contract or reduction. However, before deciding on a law, the legal consequences should be considered first. Once a legal relationship has been altered, the legal concequencies occur unhindered.
We support you in the drafting of contracts and advise you i.a. on the following topics:
- Preparation of contracts and/or general terms and conditions
- Adjustment of contracts and/or general terms and conditions
- Assertion of primary and secondary claims
The field of general contract law is supervised by our legal expert Michael Kruschinsky.