23. Feb 17

BGH: Notarized agreement decisive, not the draft agreement

In cases of doubt, it is the notarized agreement that counts and not a draft contract whose content deviates from the former. That was the verdict of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, in its judgment of June 10, 2016 (Az.: V ZR 295/14).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: A purchase agreement for real estate needs to be certified by a notary. Should a dispute arise regarding the content of the purchase agreement, it is the wording of the notarized document that is decisive and not that of the draft agreement whose content deviates from the former. This has been confirmed by the BGH.

In the instant case, the plaintiff had acquired land with a hall built on it from the defendant. Before the agreement was definitively concluded, the notary sent both parties a draft version of the agreement pertaining to the real estate purchase. The draft stated, among other things, that the land had a hall built on it and that the buyer was purchasing the land in its present age-related condition. The notary was more specific in the notarized purchase agreement. For instance, he specified the size of the hall as 640 m². Furthermore, the buyer was to acquire the property together with the furnishings.

The buyer ultimately demanded payment of damages from the seller, justifying this with reference to the hall being only 540 m² and claiming that the fitted kitchen had been removed before the property was handed over. The claim was unsuccessful before the courts of lower instance, as the parties were said to have made no arrangements indicating a specific size for the hall or concerning the sale of furnishings. The BGH, on the other hand, reached a different conclusion.

The Karlsruhe judges ruled that the text of the notarized purchase agreement was of paramount importance. They held that the notarized purchase agreement was a public deed, and that these kinds of documents testify that the statements made correspond with the written content. They also stated that there is a presumption that the deed is complete and accurate. The Court went on to say that this presumption is not rebutted by presenting a contrary draft agreement, since this would contradict the purpose of notarial certification. It concluded that a draft is not sufficient as a conclusive record of the parties’ intentions.

With this ruling, the BGH has once again clearly emphasised the significance of certification by a notary. Before a notarized purchase agreement is signed, its content should therefore be carefully reviewed. Lawyers who are versed in the field of sales of goods law can offer advice.

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