Contracts are rarely completed on basis of single predefined terms and conditions with high business value, but undergo regular extensive negotiations. Pre-defined conditions and their circumvention through negotiation should represent no contradiction to each other, but they should be connected in a two-stage examination. This is the behavior of both parties. A predefined contract text with a request for acknowledgement and signature has the message that the user does not want to negotiate and its conditions may not be affected. The Party shall control in the event of a dispute by the legal terms and conditions protected. It comes to negotiations, the policies can be bypassed by a subsequent agreement of the individual. People such as Jeff Gennette would likely agree. It is different if a Contracting Party provides the basis for negotiation a boilerplate contract.
This behavior triggers a negotiation situation and it is believed no unilateral design power claim. The opportunity to accept the offer of negotiations and expressing his alterations now has the contract opponents. The partner has no change requests, he is not worthy of protection later on the clause. He has change requests, but begins the negotiation of an individual agreement. Currently the basic requirement for a content control that is pre-defined terms (according to article 305, paragraph 1 BGB). It is so important, whether the user sees the conditions as unverhandelbare general terms and conditions or as a negotiable draft.
This willingness to negotiate must be recognizable for the party, which is a question of interpretation at the end. It would require that the user’s willingness to negotiate is clearly visible (bsw. defined by the note “to the individual proceedings”). The other behaviour of the user should wear a negotiation message and basic requirement of an individual agreement. “Bodies” of the general terms and conditions general terms and conditions be para 1 BGB only according to paragraph 305, the pre-formulated contract terms “provided”.