In social situations, there is generally no intention that agreements become legally binding contracts (. B for example, friends who meet at a given time are not a valid contract). It is worth remembering that all ambiguous standard concepts are always interpreted to the detriment of the editorial staff. It is therefore important to always design standard conditions with care. If possible, it is best to write a contract. If the parties disagree on the terms of the contract or are not clear, it is up to a court to decide what those terms mean. The court will then have to consider how the services, promises and exchanges were carried out in order to identify the intentions of the parties. It is largely wrong to believe that a transaction must be made in writing for a transaction to be contractually valid. That is not the case.
Indeed, most transactions for which a party can claim damages as a result of an infringement are oral agreements. If there is an unexpected and incriminating condition in the terms and conditions, it must be brought to the attention of the other party. Such a clause may be, for example, an exclusion clause that frees up some of the liability. Whether a condition is unusually distressing depends on the fact that it is often used by the profession or profession concerned. If it is not widely used by the trade or profession, it should be reported to the other party before the contract is concluded. If the other side`s attention is not drawn to an unusually incriminating term, it may result in the term not being used at all, or at least not in its current form. In situations where the contractor is not familiar with the profession or profession in question or is less well trained, it is all the more important to draw the other party`s attention to certain conditions before the contract is concluded. The standard terms also become binding on the parties if they are mentioned in the main agreement and if the parties have had the opportunity to familiarize themselves with the terms before the contract is concluded. It is important to note that a simple reference to the terms and conditions does not make them mandatory. In addition, standard conditions for a party may become mandatory because of past practices, the use of trade or because they are generally accepted by the sector or profession concerned. However, validity on this basis is uncertain, so the inclusion of standard conditions in the contract should be ensured by an agreement and a signature or references.
My main focus is on licensing, supply and procurement agreements in the field of information technology, as well as labour law, corporate law and marketing and IPR issues. If you have questions about whether an agreement you wish to enter into with another party requires a written contract or if an oral agreement is still enforceable in court, consult a lawyer. It is preferable to have a written agreement to avoid any misunderstanding about the intent and responsibilities of the agreement. However, there are other agreements in which the contract must be considered valid in writing, so that a court can determine the intentions of the party at the time of entry into force and not let the case exist in a “he said” situation. An example could be the sale of a car between the owner of the car and another party. Once the sale was completed, if the buyer claimed that the owner of the car had promised to repair the brakes, but not about that written promise, it is unlikely that the court would find it in the buyer`s favor, because as a commitment is not usually a condition for a sale.