Questions about drafting contracts
Questions about drafting contracts
Can I also enter into contracts orally?
Many contracts are valid without a prescribed form. Written documents nevertheless make proof easier. Certain transactions require special forms, such as public notarisation for a real estate purchase. For reservation agreements, the actual content is decisive, not simply the heading.
What are the limits of freedom of contract?
Mandatory law, illegality, immorality and excessive personal commitments impose limits. An invalid part does not necessarily invalidate the entire contract. The consequences must be assessed in light of its content and the parties’ intentions.
When are general terms useful, and how do they become binding?
General terms and conditions can standardise recurring transactions but are not universally mandatory. They must be incorporated in time and validly. Mere accessibility is not always sufficient; consent and substantive limits must also be considered.
Must long-standing supply relationships subsequently be recorded in writing?
An oral contract may be valid but is often difficult to prove. Written confirmation should record the existing agreement and expressly identify changes. One party cannot unilaterally impose new terms retrospectively.
Complex questions from practice
Under what conditions can an undertaking by email legally bind me even though I have not signed a contract?
Where no particular form is required, an email can evidence the conclusion of a contract. Statutory or agreed written-form requirements and authority to represent must be examined separately. An ordinary email does not automatically satisfy every statutory written-form requirement.
The offer, response and subsequent performance should be assessed together. It is important whether the essential terms had already been agreed or whether an express reservation remained. Preserve the complete correspondence: individual sentences taken out of context can give a different impression from the negotiations as a whole.
What happens if an employee signs a contract without sufficient authority?
Authority to represent, communicated authority and possible subsequent ratification are decisive. An internal limit on powers does not always have the same effect against third parties as the absence of external authority. Check register entries and communications.
Clarify which powers were apparent externally and what information the other contracting party had. Register extracts, powers of attorney and previous business practices may be important. If ratification is being considered, its scope should be recorded expressly. Breach of internal instructions and validity against third parties are separate questions.
How can I ensure that individually agreed undertakings apply where the general terms differ?
Record the special agreement expressly and agree its order of precedence. Advertising, negotiations and confirmation may be important for interpretation. A blanket precedence rule for general terms does not eliminate every individually agreed obligation.
A practical approach is a written supplement that specifically describes the individual undertaking and establishes its precedence on the relevant issue. Ensure that later confirmations do not make the special provision unclear again. What matters is a mutual agreement, not merely a unilateral note in your own files.
What legal consequences does an invalid exclusion of liability have for the remaining contractual provisions?
An invalid provision does not become valid merely because of a severability clause. Statutory liability rules and partial invalidity must be examined. A replacement clause must not circumvent mandatory limits either.
Examine which statutory liability replaces the disputed provision and how this changes the commercial risk. The significance of the clause for the contract as a whole may also be relevant. An invalid exclusion of liability should therefore be considered not in isolation but alongside performance, price and other risk provisions.