What this is about
Circumstances change, the participants learn, goals shift. This phase is about adapting the cooperation and its basis so that they match what the cooperation has meanwhile become.
The guiding question
When has the nail turned into a screw?
In a cooperation, ends and means shape each other. If the nail becomes a screw, the hammer will still achieve something, but no longer the right thing. In cooperations that were meant from the outset to last and to involve complex joint work, this kind of change is already contained in the shared will. The guiding question therefore calls for attention: noticing that the material has changed before the wrong tool does damage.
What helps now
Adaptation as the normal case. Changing how a cooperation works is not an admission that the original agreement was wrong. Usually it only shows that the participants now know more than when they signed. Those who see adaptation as normal can approach it calmly and in good time, instead of putting it off until it can only happen as a crisis.
A procedure for change. It helps if the agreement itself says how it is to be amended: who may propose changes, how they are discussed and decided, in what form the result is recorded and from when it applies. Such a procedure turns the question of whether one may raise changes at all into the question of how to do it. German law knows this idea for construction contracts: if the client requests a change, the parties first seek agreement on the change and its price (Section 650b(1) German Civil Code, BGB).
A review clause. A clause providing for a joint review of the agreement at fixed intervals, say once a year, removes any hint of mistrust from a wish for change. Nobody has to explain why they want to talk about the contract; the date is in the diary anyway. The reviews from the phase of supporting the cooperation supply the material.
Knowing the limits. For cases where the parties cannot agree, the law offers two ways out. If circumstances that became the basis of the contract have changed seriously since it was concluded, a party may demand adaptation insofar as it cannot reasonably be expected to hold to the unchanged contract (interference with the basis of the transaction, Störung der Geschäftsgrundlage, Section 313(1) BGB). Only if adaptation is impossible or unreasonable may the contract be rescinded or, for continuing obligations, terminated (Section 313(3) BGB). Termination for good cause (Section 314 BGB) is open to either party to a continuing obligation (Dauerschuldverhältnis), but where the ground is a breach of duty it usually requires a warning or an unsuccessful deadline for remedy first. Both are outer limits. Using them as leverage for change means the cooperation has already been abandoned.
The typical mistake
The typical mistake is to insist on the agreed hammer when the nail has long since become a screw. It rarely shows openly. Usually one side simply says that this is what was agreed and holds to the wording while the reality of the cooperation moves away from it. The contract is then no longer lived but used against the other side. Constant adaptation can go wrong too: the cooperation keeps changing in practice, nobody records the changes, and eventually nobody knows what actually applies.
Online
Online, development can be made clearly visible. If the agreement sits in the shared workspace, with versions and dates, every change can be traced. Proposals can be collected and commented on asynchronously, and the decision taken in a meeting live online with everyone present.
Form matters. Statutory written form requires a handwritten signature or a qualified electronic signature (Sections 126, 126a BGB). Where written form has merely been agreed by the parties, transmission by telecommunication is in case of doubt sufficient (Section 127(2) BGB), and text form (Section 126b BGB) is satisfied by any email. An amendment procedure should therefore specify a form that can be met online without detours, and say so expressly.
One more point: a change discussed only in a private message between two participants has not happened for the others. Changes belong in the shared space.
Law in this phase
- Cooperative clauses: amendment procedures, review and renegotiation clauses, and how to word them so that they work in practice.
- Cooperation as a legal relationship: why long-term cooperation is built for adaptation, and how Sections 313 and 314 BGB relate to each other.
- The cooperation agreement: how an agreement without a company can provide for its own development.
Next
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