Commercial contracts—Germany—Q&A guide
Commercial contracts—Germany—Q&A guide

The following Commercial practice note provides comprehensive and up to date legal information covering:

  • Commercial contracts—Germany—Q&A guide
  • 1. Is there an obligation to use good faith when negotiating a contract?
  • 2. How are ‘battle of the forms’ disputes resolved in your jurisdiction?
  • 3. Is there a legal requirement to draft the contract in the local language?
  • 4. Is it possible to agree a B2B contract online?
  • 5. Are there any statutory or other controls on parties’ freedom to agree terms in contracts between commercial parties in your jurisdiction?
  • 6. Are standard form contracts treated differently?
  • 7. What terms are implied by law into the contract? Is it possible to exclude these in a commercial relationship?
  • 8. Is your jurisdiction a signatory to the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention)?
  • 9. Is there an obligation to use good faith when entering and performing a contract?
  • More...

This Practice Note contains a jurisdiction-specific Q&A guide to commercial contracts in Germany published as part of the Lexology Getting the Deal Through series by Law Business Research (published: April 2020).

Authors: Lutz Abel Rechtsanwalts PartG mbB—Benjamin Baisch; Björn Weidehaas; Marius Mann

1. Is there an obligation to use good faith when negotiating a contract?

Yes. Good faith is regulated in section 242 of the German Civil Code (BGB). It is a fundamental principle under German law. It establishes the obligation on both parties in a contract to reliably and sincerely perform their obligations, taking customary practice into consideration. However, unless there is a violation of specific rules of law of the BGB or the German Commercial Code (HGB), it is rather hard to enforce a party’s right that is established only on the general rule of section 242 of the BGB.

The principle of good faith is specified, for example, in section 138 of the BGB (no legal transaction contrary to public policy; no usury) and in section 307 et seq of the BGB (no unreasonable disadvantage to the other party in general terms and conditions).

The principle of good faith also establishes pre-contractual rights and obligations on the parties (sections 311(2) and 241(2), BGB). A party in negotiations may demand compensation for the culpable estoppel (abandonment) of contractual negotiations by the other party if:

  1. the other party

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