Starting point: Section 305 (1) sentence 3 BGB

Section 305 (1) sentence 3 BGB expressly states that a negotiated contractual provision is not subject to the law on general terms and conditions:

“General terms and conditions do not exist if the terms of the contract have been negotiated in detail between the contracting parties.”

What is “negotiation”?

What “negotiation” means is not clear from the law. A now well-established case law of the Federal Court of Justice provides clarification. For example, a fairly recent ruling by the Federal Court of Justice from March 26, 2015 (AZ VI ZR 92/14) is quoted as follows:

[33] (1) According to the case law of the Federal Court of Justice , negotiation requires more than negotiation. Negotiation in this sense can only be said to have taken place if the user first negotiates the non-statutory core content contained in his general terms and conditions, i.e. the provisions that amend or supplement the essential content of the statutory provision, seriously puts the content of the contract up for negotiation and gives the negotiating partner freedom to protect its own interests with at least the real possibility of influencing the content of the contractual terms. He must therefore clearly and seriously declare his willingness to make the desired changes to individual clauses (BGH, judgments of March 20, 2014 – VII ZR 248/13, BGHZ 200, 326 para. 27; of November 22, 2012 – VII ZR 222/12, BauR 2013, 462 para. 10). The user must explain the relevant circumstances (BGH, judgment of April 3, 1998 – V ZR 6/97, NJW 1998, 2600, 2601). As a rule, such willingness is also reflected in recognizable changes to the pre-formulated text. At most, under special circumstances, a contract can also be considered the result of “negotiation” if, after thorough discussion, the draft remains in place (BGH, judgment of November 22, 2012 – VII ZR 222/12, loc. cit.; default judgment of January 23, 2003 – VII ZR 210/01, BGHZ 153, 311, 321 with further references). N.). Even if the text is amended, a clause only loses its character as a General Terms and Conditions if the subsequent amendment is made in such a way that it justifies treating it as an individual agreement made from the outset. This is not the case if the user has not granted the contractual partner any freedom of design even after conclusion of the contract and has not put the non-statutory core content of the clause at disposition and the parties reach an agreement on this basis with which the detrimental effect of the clause is merely mitigated (see BGH, judgment of March 7, 2013 – VII ZR 162/12, BauR 2013, 946 marginal no. 30 = NZBau 2013, 297).

The following key criteria can be inferred from the aforementioned statements of the BGH:

• Negotiating is more than negotiating!
• The person proposing a regulation must seriously question its content. This must include the non-statutory core content of the regulation. It is therefore not sufficient if there is a willingness to adapt something (insignificant) in the regulation.
• The other contracting party must be granted recognizable – and demonstrable (!) – freedom of action to safeguard its interests.
• If the original content remains in the end, “special circumstances” may justify the assumption that a negotiation nevertheless took place.

Conclusion

The requirements for the existence of a negotiation are significantly higher than is commonly assumed.

If possible, you should therefore avoid drawing up the first draft of a contract. Because then you are the “user” of the provisions contained therein, which means that the contractual partner benefits from the law on general terms and conditions. Conversely, it is better: because then you yourself are the protected party.

In any case, good negotiation documentation should be ensured so that the negotiation can be proven in the event of a dispute.