General Terms and Conditions of Mandate of the law firm Barba & Partner Rechtsanwälte
Please find here the General Terms and Conditions of Mandate of Barba & Partner Rechtsanwälte from Munich
§ 1 Scope of Application(1) The General Terms and Conditions of Mandate shall apply to legal advice, consultancy and management activities, as well as to all activities and acts of representation and defense in court and out of court, undertaken in the course of a contractual relationship by Barba und Partner Rechtsanwälte PartGmbB (hereinafter: lawyer or lawyers). (2) The General Terms and Conditions of Mandate shall also apply to new contracts with the client. (3) The client’s general terms and conditions shall only apply if they have been expressly agreed in writing between the parties. (4) In case of changes to the General Terms and Conditions of Mandate, the latest version shall apply. In an ongoing client relationship, this shall only apply if the client does not object. The client shall be informed of the latest version in writing, indicating his right to object.
§ 2 Appointment and Content of the Mandate(1) The mandate shall only come into existence upon acceptance of the mandate by the lawyers. Until acceptance of the contract, the lawyers shall, in principle, be free to decide whether or not to accept the mandate. (2) The scope of the client-lawyer relationship shall be limited by the specific mandate given by the client. The performance agreed upon in this respect shall not be aimed at achieving a specific legal or economic outcome. (3) The lawyers shall perform the mandate in conformity with the principles of professional conduct, to the best of their knowledge and belief, in particular in accordance with the provisions of the Federal Lawyers’ Act (Bundesrechtsanwaltsordnung – BRAO) and the Professional Code of Conduct for Lawyers (Berufsordnung für Rechtsanwälte – BORA). (4) As a matter of principle, the mandate is given to all lawyers of the law firm, unless expressly agreed otherwise at the time of the conclusion of the contract. If it is the case, the firm is still entitled to receive the fee. Each member of the firm shall be entitled to take over the case. Salaried lawyers, freelancers, other lawyers and lawyers of foreign jurisdictions as well as competent third parties may also be called upon to take over the case. If this results in additional costs, such as expert fees, the lawyers undertake to obtain the client’s prior consent. Such consent is not required if the same expenses would have been incurred in case of the performance been carried out by the lawyers. (5) The lawyers shall only be obliged to lodge appeals and submit legal remedies if they received a mandate to do so and they accepted it. (6) In case of representation of several clients in the same matter, the lawyer shall be entitled to inform all clients comprehensively; in this respect, contrary individual instructions by one of the clients shall be irrelevant. Objections made by one of the clients towards the lawyer or actions taken by the lawyer towards one client shall be effective for and against all clients. In the event of contradictory actions or statements by the clients, the lawyers shall be entitled to terminate the mandate. (7) If the client requests an amendment of the mandate during its performance, the lawyers shall be obliged to accept the request for amendment, if the performance of the request for amendment can be reasonably expected of them. In that case, the lawyers may request an appropriate adjustment of the remuneration for the execution of the mandate, diverging from the original expenditure planning.
§ 3 Obligations of the Client(1) The client shall inform the lawyers fully and comprehensively about the facts which are known to him/her and which are indispensable for the lawyers to know in order to be able to process the case. In principle, the lawyers shall be able to trust the information provided by the client without their own verification and use these facts as a basis for processing the case. During the term of the mandate, the client shall be obliged to communicate to the lawyers without delay any actions which the client himself/herself has taken vis-à-vis courts, authorities, third parties or the opposing party. (2) The client undertakes to support the lawyers in the execution of the mandate creating all possible conditions which are necessary to execute it properly. In addition to the obligation of providing the lawyers all necessary and relevant information in due time, all documents of the client shall be transmitted to the lawyers in due time. Any change of address (residence, mailing address, business addresses, telephone numbers, fax numbers, e-mail addresses), as well as absences, shall be communicated to the lawyers without delay.
§ 4 Communication / Confidentiality(1) The contact details provided by the client at the beginning of the mandate shall be deemed to be correct until new contact details are provided by the client. Sending documents to the address given, the lawyers shall be deemed to have complied with their duty to provide information. If the client provides an e-mail address and/or fax numbers as address data at the beginning of the mandate, the lawyers may also provide information to the client via these communication means. If the client provides an e-mail address, the client expressly agrees that the communication may also be transmitted to him/her in unencrypted form, unless the client expressly objects to this method of transmission and indicates a change in his/her communication data without an e-mail address. The client’s attention is expressly drawn to the fact that confidentiality cannot be guaranteed when using fax and electronic media (e-mail). (2) The lawyers are entitled to collect, store, use and process personal data of the client in compliance with data protection provisions for the purposes of the assignment. (3) The lawyers are obliged to keep confidential all the client information or business and trade secrets that become known to them while performing the assignment, for an unlimited period of time. Any disclosure to third parties not entrusted with the execution of the mandate may only take place with the consent of the client. (4) The client expressly agrees that the lawyers may transfer information regarding the mandate to the client’s legal expenses insurance if the lawyers have been instructed to correspond with the legal expenses insurance. The lawyers expressly point out that the client’s obligation to pay the lawyers’ fee does not lapse if the lawyers take over the correspondence with the legal expenses insurance.
§ 5 Remuneration / Instructions(1) Unless agreed otherwise with the client or a third part, the lawyers shall be entitled to receive an adequate fee in accordance with the German Lawyers’ Fees Act (Rechtsanwaltsvergütungsgesetz – RVG). If a fee lower than provided for in the RVG is agreed in extrajudicial matters, the agreement shall only be binding if it has been concluded in written form or in text form. (2) If the fees are determined in accordance with the RVG, the payment shall be based on the value in dispute of the mandate, unless it is a mandate for which the payment in accordance with the RVG is not based on the value in dispute, such as in criminal cases or in certain social law matters. At the time the lawyers are instructed, the value in dispute of the mandate may be provisional. (3) If the client and the lawyers have agreed on a time-based fee, the lawyers may continue to work on the assignment even if the time initially provided for has been exceeded. This shall not apply if the client expressly objects to the further processing and the lawyers have not drawn the client’s attention to this fact. The lawyers undertake to inform the client without delay if the time originally established has been exceeded. If hours or other units of time have been agreed in the remuneration agreement as a basis for billing, the lawyers shall keep records of the time spent in fulfilling the assignment. The time spent shall be disclosed to the client when the invoice is issued. If the client does not object to the statement of time spent immediately after receiving the invoice, the time spent, on which the fee is based, shall be deemed to have been approved. The client may at any time request to examine the time records kept by the lawyers. (4) If a mandate initially settled out of court according to an individual remuneration agreement is transferred to court proceedings, the fees will only be deducted from the statutory fees according to the RVG if expressly agreed. In this respect, the client is informed that this agreement deviates from the statutory settlement rules of the RVG. (5) In labor law cases, the winning party in first instance is not entitled to compensation for loss of time and to reimbursement of the costs of legal representation by the lawyers. (6) In case of indigence, the client may apply for legal aid. The client shall prove his indigence. Negligence shall be at the client’s expense. In criminal proceedings, the lawyer may be appointed by the court as a public defender. If the cost refund by the State Treasury is refused, the client shall be informed that he/she has to bear the remuneration as well as the expenses incurred in the course of the proceedings. In individual cases, at the end of the proceedings, the State Treasury may reclaim from the client the expenses paid to grant legal aid and the appointment of a public defender. (7) If one of the lawyers is appointed as public defender, he is obliged to defend the client even without the conclusion of a remuneration agreement. If one of the lawyers is appointed as public defender, after having been instructed by the client in a criminal case, the lawyer is obliged to continue to defend the client, regardless of the conclusion of a remuneration agreement. (8) If the client has legal expenses insurance, he/she, as the policyholder, is in principle responsible for obtaining the confirmation of insurance coverage and for claiming the cost refund with the legal expenses insurance. The client of the lawyers is always the client, even in the presence of a legal expenses insurance. The client is aware that he/she is liable for the lawyers’ claim for remuneration if the legal expenses insurance only provides partial coverage or does not provide coverage at all. The client is also aware that the legal expenses insurance only reimburses the costs for the involvement of one single lawyer. If the client instructs the lawyers to request the insurance coverage to the legal expenses insurance, the effort required for this activity shall be debited to the client according to legal provisions. The value in dispute for this activity is then determined by the amount of the costs. The lawyers expressly do not assume any guarantee for the insurance coverage being granted by the legal expenses insurance. In the event of any dispute concerning whether an assignment to request insurance coverage has been given to the lawyers, the burden of proof of the assignment shall lie with the client. If the client wishes to impose the granting of the insurance coverage by the legal expenses insurance as a condition for the commencement of the agreed work by the lawyer, this must be expressly agreed. In this respect the burden of proof shall lie with the client. (9) If the place of jurisdiction and the place where the head office of the law firm is located differ, the legal representation leads to additional costs which could possibly not be borne by the opposing party and/or the legal expenses insurance. (10) The client is in principle obliged to pay an adequate advance, which may be up to the full statutory remuneration. This shall also apply in case there are claims for reimbursement of expenses against third parties. The lawyers shall not be obliged to lay out costs on behalf of the client. The client’s attention is drawn to the fact that non-payment of advances and expenses jeopardizes the enforcement of the his/her rights. (11) In order to guarantee the lawyers’ remuneration, the client shall assign to them all claims for reimbursement of costs against the opposing party, the Public Treasury, the legal expenses insurance – in case the latter has given its consent -, or third parties in the amount of the lawyers’ fee claim, authorizing them to notify the assignment to the party liable to pay. This notification shall only be made if the client does not meet his payment obligations, in particular if the client refuses to pay, is in default of payment or if an application for the opening of insolvency proceedings against his assets has been filed. (12) The lawyers shall be entitled to set off incoming reimbursement amounts and other claims which are due to the client and received by them, against outstanding fee claims or services still to be invoiced, after issuing the invoice, insofar as this is legally permitted.
§ 6 Payment(1) Advance invoices of the lawyers as well as the final invoice shall be payable without deduction. (2) If costs and interest have incurred which are to be borne by the client, the lawyers shall be entitled to set off payments first against the costs, then against the interest and finally against the principal claim. A setoff against claims of the lawyers (remuneration and expenses) shall only be allowed if the client’s claims are undisputed or have become res judicata. (3) In the event that several clients enter into a mandate with the lawyers regarding the same legal matter, all clients are collectively liable for the legal or agreed lawyers’ fee. (4) Payments in lieu of performance or on account of performance shall be excluded in respect to the lawyers’ claims for remuneration. Money orders, credit card payments as well as cheques and bills of exchange are only accepted if all collection and discount charges lie with the client. These means of payment shall only be deemed to constitute fulfilment of the claim for payment if the amount is honored and is available to the lawyers without any restriction. (5) The client is in default of the remuneration payment at the latest one month after receiving the invoice. The receipt of the invoices shall be deemed to have taken place at the latest after two days of the month following the invoice date. (6) Outstanding claims of the lawyers shall bear interest in accordance with § 288 of the German Civil Code BGB.
§ 7 Liability, Limitation of Liability(1) The lawyers’ liability arising from the contractual relationship with the client for damages caused by ordinary negligence is limited to € 1 million (§ 52 (1) No. 2 BRAO). This limitation of liability shall not apply in case of gross negligence or intentional damage, nor to liability for damages culpably caused to life, body or health of a person. (2) The lawyers have a pecuniary loss liability insurance which covers € 2.5 million per insured event (up to a maximum € 5 million per insurance year). If the client wishes to ensure a liability exceeding this amount, there is the possibility of an additional insurance for each individual case, at the client’s request and expense.
§ 8 Termination of the Mandate(1) The contractual relationship may be terminated by the client at any time. (2) The lawyers may also terminate the contractual relationship at any time. This applies in particular if the client is in default of payment and has been threatened with termination. (3) The termination by the lawyer shall not be at an inopportune moment. (4) After termination of the mandate, unbilled services are invoiced without delay. The invoice shall be settled immediately upon receipt, unless a term of payment is stated in the invoice. (5) The right of extraordinary termination for good cause remains unaffected.
§ 9 Retention of Documents, Shipping Risk(1) The lawyer’s duty to retain all documents which the client or a third party has provided to the lawyers on the occasion of the performance of the assignment shall end six years after the termination of the mandate, unless the lawyers have previously offered in writing to hand these documents over the client. (2) If documents are sent to the client, this may be done to the last address communicated. The shipping risk shall lie with the client, unless the client has objected to the shipment and has given a binding undertaking to collect the documents without delay. (3) If the lawyers are entitled to receive remuneration from the client under the mandate, the lawyers shall have a right of retention to the documents received by them under this mandate. The exercise of the right of retention may not be disproportionate.
§ 10 Agreement on the Place of JurisdictionIt is agreed that the place of jurisdiction shall be the head office of the law firm in the event that the client moves his registered office, place of residence or habitual abode outside the territory of the Federal Republic of Germany after having appointed the lawyers, or if his registered office, place of residence or habitual abode is not known at the time the action is brought. The place of performance of the lawyers shall be the head office of the law firm, unless another place of performance is expressly agreed.
§ 11 Final Provisions(1) Rights arising from the contractual relationship with the lawyers may only be assigned with the prior written consent of the lawyers. (2) All contractual relations between the client and the lawyers shall be governed exclusively by the law of the Federal Republic of Germany, unless a different law is expressly agreed upon when the agreement is concluded. (3) The competent arbitration board for property disputes arising from the client-lawyer relationship shall be the Schlichtungsstelle der Rechtsanwaltschaft, Rauchstr. 26, D-10787 Berlin. (4) Amendments or supplements to these General Terms and Conditions of Mandate must be made in writing and must be expressly marked as such. This shall also apply to this provision. (5) Should any of these provisions be or become incomplete, legally invalid or unenforceable, this shall not affect the validity of the remaining provisions. In place of the invalid or unenforceable provision or in order to fill the gap created thereby, an appropriate provision as close as possible to what the contracting parties intended or would have intended within the scope of what is legally permissible shall be deemed to have been agreed. (6) In the event of any inconsistencies between the German and English wording, its structure, meaning or interpretation, the German structure, meaning or interpretation shall prevail.
Version: 11/2023 Barba & Partner Rechtsanwälte PartGmbB