4 March 2021
Guideline - Liabilities and Indemnities under German Law
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Under German law limitation/exclusion of liability clauses respectively indemnity clauses require an individual agreement (no general terms and conditions (“GTC”) or standard agreements with contract terms pre-formulated for more than two contracts).
There is more freedom of contract in CISG (UN Convention on International Sale of Goods) or Common law or Swiss law. Therefore, for cross-border businesses respectively international agreements it might be considered to choose another law than German law. But even in national agreements it might be worth considering an escape from German law in standard agreements and GTC.
See Martin Rothermel’s very helpful 2nd Edition of the publication on International Purchases, Deliveries and Distribution: It contains compact information and considerations on international purchase, supply and distribution contracts (choice of law and jurisdiction or arbitration, German law - CISG - Swiss law - Common law in comparison (with a very helpful spreadsheet table on similarities and differences in contract structure comprising over 80 topics), internationally mandatory provisions in distribution in more than 50 regions and countries, retention of title provisions and validity of consignment agreements in more than 75 countries, basics of antitrust law for vertical agreements in the EU and more than 10 other countries, comments on Incoterms®2020). The book also contains a spreadsheet overview of content, similarities and differences in 12 well known arbitration rules of international arbitration institutions as alternatives for state courts. Moreover the Book provides an update on the Brexit consequences and other international free trade agreements that were signed in 2020 in large scale (creating the two biggest free trade zones in the world).
