{"id":1039,"date":"2026-09-30T15:12:09","date_gmt":"2026-09-30T15:12:09","guid":{"rendered":"https:\/\/cooperation.law\/?page_id=1039"},"modified":"2026-10-01T07:15:09","modified_gmt":"2026-10-01T07:15:09","slug":"agreeing-the-cooperation","status":"publish","type":"page","link":"https:\/\/cooperation.law\/en\/agreeing-the-cooperation","title":{"rendered":"6. Agreeing the cooperation"},"content":{"rendered":"\n

What this is about<\/h2>\n\n\n\n

The design becomes an agreement. It should record what applies and at the same time allow the cooperation to develop. A cooperation agreement is therefore built differently from a sales contract.<\/p>\n\n\n\n

The guiding question<\/h2>\n\n\n\n

Does the contract govern the relationship or only the performance?<\/em><\/p>\n\n\n\n

An exchange contract describes performance and counter-performance and is fulfilled once both have been rendered. A cooperation has no such end that could be fixed in advance. Goals change, contributions shift, new questions arise. A contract that only lists performances is out of date within months. A contract that also governs the relationship says how the partners deal with each other when something changes: how they keep each other informed, how they decide, how they handle disputes and how they part. It is a small constitution of the cooperation.<\/p>\n\n\n\n

What helps now<\/h2>\n\n\n\n

Choose deliberately between contract and legal form.<\/strong> Many cooperations manage with a contract. Those who act jointly towards third parties, build up joint assets or want to admit further partners often need a legal form of their own. Care is needed with a mere contract too: if the partners commit to pursuing a common purpose, even a “cooperation agreement” is a partnership agreement (Section 705(1) German Civil Code (BGB)). If, by their common will, the partnership is to take part in legal transactions, it has legal capacity (Section 705(2) BGB), and the partners are personally liable for its debts (Section 721 BGB).<\/p>\n\n\n\n

Include cooperative clauses.<\/strong> Some provisions turn a performance contract into a cooperation agreement. A preamble records why the partners are working together and helps later with interpretation. Information rights and duties make sure that bad news arrives early, while there is still time to change course. A change procedure sets out how the contract is adjusted without every change becoming a new negotiation. An escalation clause determines who talks to whom first in case of disagreement and when a third party, such as a mediator, is brought in. Finally, an exit clause says how the partners separate and what happens to joint results.<\/p>\n\n\n\n

Build on the design, do not replace it.<\/strong> The contract should grow out of the shared design. If one side puts forward its standard contract and pushes the design aside, the joint work of the previous phase is lost. The other side then negotiates against someone else’s text instead of working on a shared one.<\/p>\n\n\n\n

Settle language and law when partners are abroad.<\/strong> In cross-border collaboration, the partners should determine which law applies. For contractual obligations, the Rome I Regulation allows a free choice of law (Article 3(1) Rome I). Language matters just as much: if the contract is drawn up in two languages, it should be clear which version prevails in case of discrepancy. The choice of court or an arbitration agreement belongs with these questions.<\/p>\n\n\n\n

The typical mistake<\/h2>\n\n\n\n

The contract is seen as a declaration of mistrust and is therefore either avoided or overloaded with liability and penalty clauses. Both miss its purpose. Without a contract, whatever the law provides for the relationship applies, and that often does not fit, for instance when a civil-law partnership (GbR) has come into being unnoticed. A contract built only for the dispute is no help in everyday work and invites dispute. A good cooperation agreement is mostly consulted on ordinary questions, such as who signs the next offer.<\/p>\n\n\n\n

Online<\/h2>\n\n\n\n

Contracts today are often concluded online: by email, through an electronic signature service or by approval in the shared document. For most cooperation agreements the law prescribes no form. Any form of agreement then suffices, including email. To avoid later disputes about the content, the final text should still be recorded unambiguously and confirmed by everyone.<\/p>\n\n\n\n

Where the law does require a form, the differences matter. Written form requires a handwritten signature (Section 126(1) BGB). This really means a “wet-ink” signature: put on the paper by one’s own hand, and the signed original itself must reach the recipient. A scanned signature or one inserted as an image is not enough, nor is a fax, a photo or a PDF of the signed page (on fax, BGHZ 121, 224). For a contract, both parties sign the same document, or each party signs the identical copy intended for the other (Section 126(2) BGB). Partners negotiating online therefore send each other the signed copies by post. Written form can also be replaced by electronic form unless the law provides otherwise (Section 126(3) BGB), which requires a qualified electronic signature (Section 126a(1) BGB); a simple email is not enough. Text form only requires a legible declaration on a durable medium naming the person making it (Section 126b BGB); an email is sufficient.<\/p>\n\n\n\n

Some contracts must be notarised, for example the articles of a GmbH (Section 2(1) Limited Liability Companies Act (GmbHG)), which can now also be notarised by video (Section 2(3) GmbHG). Where the partners have merely agreed written form by contract, transmission by telecommunication, for example by email, is in case of doubt sufficient (Section 127(2) BGB).<\/p>\n\n\n\n

Law in this phase<\/h2>\n\n\n\n