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Created on Saturday, 08 November 2008 00:36

Last Updated on Friday, 28 December 2012 18:54

Oral Agreement instead of Written Form as Agreed in Standard Contract

A rental contract was signed having a clause that all subsequent agreements were to be made in writing. The OLG Düsseldorf had to decide on June 1, 2006 (re I-10 U 1/06) whether a clause (here to reduce the rent) could be taken out of force by oral agreement. The stipulation for written form also contained the condition that it could only be altered by written form – so-called qualified written form.

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The landlord used a form contract which subjected the contract to the rules of standard terms and conditions not prohibited by §§305b et.seq. BGB, whereby any standard term could be altered by deviating individual mutual agreement. The written form clause did not prevent this.

It is of no relevance whether the parties understand that they have chosen to change their form contract. It is ruling judgments of the Bundesgerichtshof (latest of September 21, 2005, re XII ZR 312/02) that such an individual oral agreement can overrule an unqualified written clause stipulation. Nothing else can apply for qualified written clause stipulations. The interest of the party relying on the standard contract not to lose a long-term business advantage does not preclude the possibility of subsequently changing a contract by individual agreement. Normally, a change to an individual agreement required in writing must be made in writing. Individual agreements can only be changed by individual agreements.

This article shows you that if one thing is certain, cannot always rely on the validity of standard terms. Standard terms or form contracts are always overruled by individual agreements. Individual contracts or agreements demanding written form for changes or supplements can only be changed by another individual contract or agreement.





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