What this is about
The partners want to work together, but much is still open: scope, roles, contributions, form. In this phase the shared picture of the cooperation takes shape before it is set down in a contract. The picture is a work in progress and should be treated as one.
The guiding question
How do we record what is still open?
Fix things too early and you lose the flexibility a good design needs. Record nothing and you go round in circles and forget what had already been agreed. The task of this phase is to record agreement and openness at the same time: what is clear, what is still disputed and what will deliberately be decided later.
What helps now
A shared document as a shared place. The design should not be drawn up by one side sending drafts to the other, but in a document everyone writes in. Those who write along recognise themselves in the result. Whether a common third thing emerges in this document, which everyone works towards, depends on conditions described on the page The click and its conditions.
Mark open points as open. A separate section for unresolved questions stops vagueness from hiding behind well-sounding phrases. Each open point needs someone who will resolve it, and a date.
Describe contributions and roles, not just goals. Shared goals are easy to formulate at this stage. Harder and more important is what each side contributes, who decides what, and who informs whom about what. These questions show whether the partners mean the same thing by the same words.
Plan a pilot phase. Some questions cannot be settled at a desk. A pilot phase with a limited aim and an agreed date for review lets the design be tested in practice. Both sides should know beforehand what will happen after the pilot, whether it succeeds or not.
Think about the form. The design already raises the question of whether a contract is enough or whether a separate legal form makes sense, such as an association, a cooperative or a joint limited company. The answer depends on how long, how closely and with how many participants the work is to be done. This also applies when several people found a company: the design phase is then the work on the future articles.
The typical mistake
A letter of intent (Absichtserklärung) that each side takes seriously in a different way. One side regards the signed letter as a contract, the other as a non-binding note. What effect such a document has depends on its content. As a rule, a letter of intent does not oblige the parties to conclude the main contract. Individual provisions in it may, however, be meant to bind and be effective, for example on confidentiality, exclusivity or costs.
Then there is the trust that grows during negotiations. Anyone who leads the other side to justifiably expect that the contract will certainly be concluded, and then breaks off without good reason, may exceptionally be liable for the loss incurred in reliance on it (Sections 280(1), 311(2), 241(2) German Civil Code (BGB)). A good letter of intent therefore states expressly which of its parts are binding and which are not.
Online
Work on the design goes particularly well online. A shared workspace with a document in which everyone writes and comments makes the work visible: everyone can see who proposed what and who changed what. The version history replaces many a set of minutes.
Asynchronous work suits this phase. Everyone can think, write and comment at their own pace rather than taking a position on the spot in a meeting. Video calls become shorter and better as a result. They serve the open points that need discussing rather than the reading-out of drafts. A proven rhythm is: write asynchronously, decide synchronously. More under Synchronous and asynchronous.
One rule should be agreed early: whatever is in the shared document is a draft until everyone expressly approves it. Otherwise an approving comment is easily taken for a commitment.
Law in this phase
- Letter of intent: Which parts of a letter of intent bind, and how to say so clearly.
- Legal forms compared: Contract, GbR, association, cooperative or GmbH, compared by the questions that matter for cooperation.
- Data and rights: Who owns the results of joint work, including the jointly written design.
Next
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