Lawyer Contract Law Munich
Civil Law Commercial Law Munich
We have many years of experience in contract law, both in the drafting of contracts and in contractual disputes. In the area of contract law, we always keep abreast of the latest case law and legislation. We are happy to review your existing contracts for risks and the need for change. In the event of disputes, we support you in asserting your claims and assist you in defending against unjustified claims – both in and out of court.
Contract law / drafting of contracts / review of contracts
When drafting contracts, legal assistance is strongly recommended to ensure that a contract delivers what is expected of it: Avoid disputes and make meaningful arrangements both for expected situations and unexpected events. We often experience that for cost reasons contracts are drawn up by laypersons or compiled from contracts available on the Internet. Such an approach is strongly discouraged. After all, not everything that can be enforced in contract negotiations ultimately stands up to judicial review. Since contractual clauses are often to be regarded as general terms and conditions, they are subject to content control in accordance with §§ 305ff. of the German Civil Code. BGB. This applies, for example, to employment contracts, rental contracts, purchase contracts, etc. As soon as a contract is provided by a contracting party and contractual provisions are pre-formulated for a large number of contracts (this is possible according to BGH case law already with the first use), general terms and conditions in the sense of §§ 305ff. of the German Civil Code (Bürgerliches Gesetzbuch – BGB) are applicable. BGB (see below). This often results in the extremely unfavourable situation that unfavourable clauses in the contract apply against the user, whereas the user cannot invoke the clauses favourable to him himself, as they do not stand up to court proceedings.
You will receive competent and reliable advice on contract law, contracts that stand up to scrutiny by the courts in an emergency and benefit from individual and personal advice. Information on contract law on the Internet or in other guidebooks cannot replace a tailor-made contract. Every situation requires a precise analysis of the risks and possibilities. Mr. Hödl has extensive experience in contract law, both in drafting contracts, reviewing contracts and the effects of contractual provisions in court disputes.
General Terms and Conditions and Review of Content
According to current law, almost every contract provided by an entrepreneur is subject to content control. This means that agreements that are intended to deviate from the legal regulation can only be effectively concluded under certain conditions. The content control of general terms and conditions does not only cover small standard agreements, which are referred to as general terms and conditions, but all “contractual conditions pre-formulated for a large number of contracts” (Section 305 (1) BGB) in employment contracts, purchase contracts, rental contracts, etc. It does not matter whether the provisions form an externally separate part of the contract or are included in the contractual document itself, what their scope is, in what font they are written and what form the contract takes. It does not matter whether the conditions are actually used in a large number of contracts. It is already sufficient that there is an “intention of multiple use”, which is already assumed in principle by the courts in the case of a use for 3 contracts. If multiple use can be assumed, e.g. on the basis of the concrete design, the first contract already falls under the provisions of §§ 305 et seq. of the German Civil Code. BGB. In the case of consumer contracts, essential provisions of the GTC law may also be applicable to pre-formulated contractual terms if they are intended for one-time use only.
The regulation or limitation of liability plays a central role in the drafting of contracts. It is not only a matter of excluding liability in all cases. Too broad limitations of liability are ineffective and have the opposite effect to what was sought with such clauses, which under certain circumstances were laboriously negotiated and formulated in the contract. The general law of obligations provides for unlimited liability for all damages incurred by a contracting party due to a breach of main contractual obligations or ancillary obligations by the contracting party. Only if the contracting party is not responsible for the breach of duty (culpa in contrahendo), which the contracting party which committed the breach of duty has to prove, the liability for damages is excluded. It is therefore recommended that the consequences of disruptions to performance should be contractually structured differently from the statutory regulation, differentiated according to the degree of fault but also according to the type of disruption to performance. In contracts, disruptions in the contractual relationship can be regulated in more detail and, above all, more constructively than by the statutory provisions applicable to all types of contracts.
General exclusions of liability are only possible within narrow limits, as they always represent a deviation from the statutory – basically unlimited – liability. In General Terms and Conditions (GTC), liability due to intent, gross negligence and injury to life, limb and health cannot be excluded. Liability for slight negligence can only be limited to typically foreseeable damage in the event of breach of material contractual obligations (so-called “cardinal obligations”). Flat-rate claims for damages are only possible if the flat rate does not exceed the damage to be expected according to the normal course of events or if the contractual partner is able to prove the occurrence of a lower damage (§ 309 No. 5 BGB).
International Contract Law
Attorney Hödl is also at your disposal for the drafting of international contracts, both for the drafting of contracts in English for use in cross-border situations or with foreign partners and for use in international business transactions.