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Case:
BGH NJW-RR 1987, 144 VII. Civil Senate (VII ZR 245/85)
Date:
09 October 1986
Translated by:
Raymond Youngs
Copyright:
Professor Basil Markesinis

(...)

Grounds:
The appeal court leaves open the question of the claimant’s authority for the claim, and considers all the claims to be time-expired on the 29th September 1982. It assumes that there was a guarantee period of two years in accordance with § 12 (1) of the contract and that the period commenced with the inspection and approval of the building work in accordance with § 8 (1) of the General Conditions of Contract for Architects' Contracts (AVA). It regards the length and commencement of the guarantee period as "negotiated" (ausgehandelt). The appeal in law successfully challenges this.

1. According to § 12 (1) of the architects' standard form of contract, a period of 2 years is agreed as the limitation period for the liability of the architect in accordance with § 8 of the AVA. This number is, like other entries in the form - with the exception of the hand written correction of a description of house types and the date of the document - inserted with a typewriter. The contract document therefore appears, as the appeal court also accepts, to be general conditions of contract put forward by the defendant. In such conditions of contract, the statutory guarantee period cannot be effectively shortened (...). General conditions of contract are not however present in so far as the contractual conditions have been "negotiated" individually between the parties (§ 1 (2) of the AGBG (General Conditions of Contract Act) [§ 305 (1) sentence 3 of the BGB]).

2. The appeal court bases its finding that the length and commencement of the guarantee period had been "negotiated" on the evidence of the civil engineer A interrogated by it, who had concluded the architect’s contract with the defendants on behalf of F. A has stated:

He had knew the form of contract brought by the first defendant to the negotiations as the standard form of the Architect's Association, and had therefore had no doubts about its use. The points which were to be individually determined had been talked through. In so far as the form had needed to be completed, these issues had been very intensively discussed, as well as the limitation issue. He had had in mind first of all to get a five-year period accepted. But then he had discovered that the developer R would only be liable under its guarantee for two years. The limitation period for the liability of architects should to run in tandem with the period for the developer’s liability. The participants were in agreement here in assuming that the period should begin with the inspection and approval of the building for the defendants as well. Apart from the level of the fee, where he had had to make concessions to the defendants, the contract had corresponded with his wishes in every respect.

The course of dealings thus described does not support the appeal court’s finding that the length and commencement of the guarantee period were "negotiated".

a) "Negotiate" means more than "treat" (Verhandeln) (references omitted). So it does not suffice for a finding that the contract or individual clauses were "negotiated" that the form put forward is known to the negotiating partner and does not meet with objections, or that the content is merely explained or discussed and corresponds with the wishes of the partner (references omitted).

b) It is only possible to speak of "negotiation" when the user first seriously puts “on the table” the core content which is contrary to statute law in his general conditions of contract ie the provisions which amend or supplement the substantial content of the statutory regime, and gives the negotiating partner freedom of formulation for protection of his own interests, with at least a real possibility of influencing the shaping of the content of the contractual conditions (references omitted). He must therefore clearly and seriously declare himself prepared to make the desired amendment to the individual clauses. As a rule, such preparedness also leaves its mark in identifiable amendments to the preformulated text. In special circumstances a contract can however be rated as the result of a “negotiation” even if in the end, after thorough discussion, it stays in the form of the original draft (references omitted).

c) Neither the defendants’ submissions nor the description of the course of dealings by the user's contracting partner give any ground for thinking that the defendants here would have been seriously prepared to amend the pre-formulated contractual conditions at the wish of the negotiating partner. The civil engineer A appearing for F and the future clients’ association has neither requested nor secured any amendment to the text as preformulated with the gaps already filled in, in spite of exhaustive discussion. Instead, he has agreed to all the contractual conditions. His unsuccessful attempt to bring the fee down did not concern the preformulated contractual conditions. It is true that he had "in mind" at first get a five-year guarantee period accepted. But he abandoned this of his own accord when he had discovered – and this can only have happened from his firm - that the developer R associated with F was only to provide a guarantee for two years, which he apparently saw as irreconcilable. Nothing in his description of the dealings suggests that the two year period provided for by the defendants for their liability had seriously been put “on the table” by them. A has only given evidence about his own considerations which caused him to accept the two year period required by the defendants. For this, he could not even get a reduction of the remuneration accepted, even though this was at that time inherently possible. Thus it can in any event be deduced from his representation of the results of the dealings that he gave way to a supposedly better insight and thereby submitted to the contractual conditions.

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