Contingent contracts

The preliminary contract is a contract of debt, by the commitment of the Parties is established, another ( other ) contractual legal agreement, the main contract to complete. It is an executory agreement that will be settled by the conclusion of the main contract. It undertakes therefore someone to commit later.

General

The preliminary prepares the emergence of a major contract. No pre-contract is therefore a contract of debt (such as the purchase agreement ), the fulfillment of a real contract (in the example: Agreement on transfer of ownership ) requires. The preliminary reason alone the fulfillment of obligations, the mutual claims of a preliminary contract are enforceable. He is ( 1297 BGB § ) is not regulated by the Act with the exception of the betrothal; but its admissibility follows from the principle of freedom of contract and by the case law. Through him an obligation to contract is established by contract. From the preliminary contract gives rise to a bargaining obligation, the object of the contract terms, which have been subject to regulation by the Parties to the main agreement and which are therefore also only lay down in this. If for the completion of the main contract a particular form is prescribed, then this form must also be complied with at the conclusion of the preliminary contract.

Content

The preliminary contract is indeed not regulated by law, but is it a contractual legal agreement, which establishes the obligation for future completion of a major contract. A preliminary thus obliges the parties to conclude the main contract. In a preliminary contract the essential elements of the contract of the later main contract are included. The execution of the main contract is enforceable in this case, in contrast to the mere letter of intent or memorandum of understanding. The conclusion of a preliminary contract is advisable, for example, if the main contract nor practical or legal impediments exist (eg planning permission ). The obligation to conclude the main contract may be made in such a case in the pre-contract under the condition that a certain event occurs or the obstacle falls away. A preliminary agreement can also be designed so that only one party is bound, however, the other assumes no duty to conclude a contract.

The Federal Court had to consider in a judgment of 12 May 2006 on a pre-contract. It was about the " call option " is not rare when buying real estate. After a notarized purchase option by the Supreme Court was designed as a contingent deferred pre-contract. Such an interpretation is, according to the Supreme Court not only possible, but also obvious, because only they, verhelfe the only written statement which shall meet after the agreed services of a notary purchase option for the exercise of the option right for effectiveness. The parties are not prevented, to be bound by the conclusion of a preliminary contract initially only in terms of single points and reserve the cleanup the leftovers of a subsequent agreement in the main contract. With regard to the notarization of the agreement binding the parties will not be any doubt. As far as the details of the arrangements to be concluded were a main contract subject, the lack of agreement of the Parties only lead to the invalidity of the preliminary contract, if the parties have not regulated point for significantly viewed.

It was content for the rest, although necessary, but also sufficient that the essential elements of the main contract and the obligation to reach an agreement on the further details of the contract to be concluded, are fixed. It should be noted only that the preliminary contract shall be written in the form of the main contract, because it is void because otherwise formal defect.

Austria

In preliminary agreement under Austrian law essential points of the main contract are recorded. He is an agreement ( § 936 Civil Code) to enter into a main contract dar If the main contract at the time agreed in the preliminary contract is not reached, can be sued within a year of completion of the contract. If this action is not filed within a year, the right to contract. A contracting party has invoked successfully to changing circumstances or to the absence of the basis, the conclusion of the main contract can not be enforced. Basic legal or economic changes may be reasons for the appeal to the so-called " fact " clause ( Clausula rebus sic stantibus ).