The path of amicable understanding
The parties had concluded an agency agreement in 2006, which the defendant terminated with due notice. Section 15 of the General Agency Agreement Terms and Conditions (“AAVB”) contained the following amicable settlement clause under the heading “Dispute Resolution”: ” The contracting parties pledge to first attempt to resolve any disagreements arising in connection with the contractual relationship by means of pursuing the path of an amicable agreement. (…)”. Section 15 (2) AAVB specified that the contracting parties should seek to reach an agreement without the involvement of a third party. Section 15 (3) AAVB stipulated that the involvement of the agent’s professional representative would not be considered a violation of the provision “without the involvement of a third party.”
Prior to the court proceedings, the plaintiff had requested the defendant, among other things, to take into account a factor other than the one applied when calculating the indemnity claim. The defendant refused to do so, arguing that an agreement on a “maximum factor” claimed by the plaintiff had not been proven.
The failed attempt to take a shortcut
The Regional Court of Lüneburg dismissed the plaintiff’s lawsuit under commercial agency law, ruling that it was inadmissible due to disregard of the dispute resolution clause. Neither the Regional Court of Lüneburg nor the Higher Regional Court of Celle accepted the plaintiff’s counterarguments after he appealed:
a. Validity of the amicable settlement clause
The validity of the clause was not challenged by the fact that the plaintiff was unreasonably disadvantaged with regard to the content review to be carried out in accordance with Section 307 of the German Civil Code (BGB), contrary to the principles of good faith. The requirement of transparency, which includes the requirement of specificity and demands that the factual requirements and legal consequences be described so precisely that no unjustified scope for discretion arises for the user, was not violated. There was no lack of transparency within the meaning of Section 307 (1) sentence 2 BGB. Contrary to the plaintiff’s view, the “path of amicable agreement” was explained in more detail and it was clear from the wording of Section 15 sentence 4 AVVB that the parties should first attempt to resolve the disagreement “amicably,” i.e. by means of agreement and, if necessary, by concluding a settlement within the meaning of Section 779 BGB. Such a clause was also not per se disadvantageous to the plaintiff. Section 15 AAVB merely required the contracting parties to attempt to reach an agreement before resorting to legal action.
b. Serious effort to reach an agreement
The settlement clause requires that, before legal action is taken, a serious effort to reach an agreement must be evident.
The rejection of the application of the alleged maximum factor constitutes a rejection of the asserted claim, but not a refusal of a conciliation procedure that had not been previously suggested by the plaintiff. The defendant was merely obliged to participate in an attempt to find an amicable solution initiated by the plaintiff. The defendant was not obliged to actively initiate such settlement proceedings required prior to a legal dispute.
Nor did the defendant have to actively seek an agreement with the plaintiff, because the declaration of ordinary termination did not require a disagreement or the implementation of conciliation proceedings within the meaning of § 15 AAVB.
c. Rejection of the subject matter is not equivalent to rejection of an attempt to amicably settle
Invoking the settlement clause is also not contrary to good faith because the relationship of trust between the parties has not been disrupted to such an extent that an attempt at settlement no longer appears reasonable. It is true that the defendant did not accept the plaintiff’s offer of an out-of-court settlement attempt (after the conclusion of the first instance) and that the defendant rejected the mediation procedure suggested by the court in the first instance. However, this statement must be assessed in the context of civil procedure and does not prove the defendant’s unwillingness to reach a settlement.
The Higher Regional Court of Celle suggested that the plaintiff withdraw the appeal.
A rocky path requires greater caution
Terms and conditions often stipulate that the parties should first attempt to reach an agreement before referring a dispute to the ordinary courts or arbitration tribunals. Soft or ambiguous wording such as “pursuing the path of an amicable agreement” or “resolution” of a disagreement often stems from the need of both parties to manifest in the contract an approach to dealing with possible disputes in a reasonable and constructive manner. Right from the start of the contractual relationship, the other contracting party should know that you will not immediately “run to court” if a dispute arises. Especially in the case of clauses that are open to interpretation, it is advisable to take into account the seriousness of the efforts to reach an agreement. It helps to keep in mind the spirit in which the agreement in question was originally concluded.
