01 - Written Contracts and Verbal Changes

Are written contracts and verbal changes to them valid? In many cases, it is in the interests of the contracting parties that verbal agreements are excluded. To do this, they write the following sentence in their terms and conditions:

The contract and changes to it are only concluded if confirmed in writing.

However, the law in Germany has declared such an agreement to be ineffective. If the contract is made in writing, this clause is meaningless. If, on the other hand, the contract or change is confirmed verbally, the verbal confirmation takes precedence because it was agreed individually. In particular, a clause in the general terms and conditions requiring the written form is not regularly effective.

An oral agreement, as it is an individual agreement, is effective regardless of whether it is required in writing. However, anyone who invokes an oral agreement, bears the burden of proof. It should be noted that a change, agreed orally on the phone, is also binding. The priority of the individual agreement according to paragraph 305 BGB applies.

In order to avoid a dispute, it is therefore better not to make any verbal promises about deviating regulations. It should be noted that with other national legal forms, e.g. Anglo-American law, the above clause on the written form is also valid.