In a commercial lease of business premises used as a day care facility, the completeness clause "Oral ancillary agreements do not exist" was agreed under §14 Miscellaneous. This completeness clause is the point of dispute in court proceedings between the defendant tenant of the business premises and the landlord (AZ XII ZR 92/19). Between April 2016 and May 2017, the tenant did not pay the rent of 4,592.67 euros per month agreed in the contract, as well as an advance operating cost payment of 1,803.77 euros, but retained part of the rent. In total, the court proceedings concern, among other things, the payment of rent arrears of 42,993.93 euros.
The defendant tenant withheld monthly rent payments during the aforementioned period because it believed that the landlord did not adhere to previously made agreements regarding the renovation of the business premises and that the rental property thus had defects. This included, for example, the replacement of the single-glazed windows with double glazing. The tenant relied on Section 3 on the condition of the rented premises agreed in the rental agreement, which states: "The premises shall be freshly renovated by the landlord prior to the commencement of the rental period as agreed". The Dresden Higher Regional Court (OLG) is of the opinion that even if ancillary agreements had been made beforehand, these would not have had any effect on the rental agreement, because it was agreed in Section 14 No. 1 that there were no verbal agreements to the agreement.
However, the BGH disagreed and sent the case back to the Higher Regional Court. On the one hand, the addition "as agreed" had to be examined more closely with regard to § 3 of the rental agreement. Because this indicates that there were verbal agreements. In addition, the BGH points out that the agreed completeness clause does confirm the completeness and correctness of the contractual document. However, it cannot be inferred from the completeness clause that there were no prior oral agreements that were part of the agreements initiating the contract. In addition, the completeness clause does not exclude that the contractual partner is entitled to provide counter-evidence.
Source: BGH
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