Term and definition of accidentalia
Als Accidentalia (from Latin “accidentalia” = incidental circumstances) refers in law to the entirety of all contractual ancillary points that go beyond the statutory or essential contractual components (essentialia negotii). In German law, they are particularly relevant in civil law and contract law. Accidentalia determine the individual peculiarities of a legal transaction agreed upon by the parties, but are not mandatory for its formation.
Systematic classification of accidentalia in contract law
Accidentalia in relation to essentialia negotii
A contract is generally formed—such as in sales law, tenancy law, or contract for work law—by agreement on the so-called essentialia negotii. These are the indispensable minimum contents, such as contracting parties, subject matter of the contract, and the price. Accidentalia pertain to supplementary modalities such as delivery deadlines, payment terms, contractual penalties, or choice of jurisdiction clauses. The absence or indefiniteness of accidentalia generally does not affect the validity of the contract, provided that the essentialia negotii are determined.
Significance for the formation and interpretation of contracts
Accidentalia primarily influence the design and execution of a contract. In the event of disputes regarding the content and scope of a contract, contractually agreed accidentalia can be decisive for the legal classification and interpretation (§§ 133, 157 BGB). Individual agreements in particular take precedence over dispositive statutory provisions. If there are no contractual provisions, statutory regulations apply as far as they exist and are not mandatorily excluded.
Legal significance and effects of accidentalia
Freedom of contract and accidentalia
Within the scope of private autonomy, the contracting parties are free to structure accidentalia according to their own interests. Restrictions may arise from statutory prohibitions, immoral content (§ 138 BGB), or the law on general terms and conditions (AGB law). Especially when using general terms and conditions, accidentalia are often subject to judicial review.
Accidentalia and general terms and conditions (AGB)
If accidentalia are not individually negotiated but instead stipulated by pre-formulated contract terms (AGB), they are subject to content control under §§ 305 et seq. BGB. In this process, the court examines whether the accidentalia are effectively incorporated into the contract and are substantively permissible. Provisions that are surprising (§ 305c BGB) or unreasonably disadvantageous (§ 307 BGB) can be declared invalid.
Accidentalia in private international law
In the context of cross-border contracts (e.g. CISG, UN Sales Law), accidentalia can also be agreed upon. Particular care is required here, as different national legal systems may have different requirements regarding the interpretation, prerequisites, and effectiveness of accidentalia.
Typical examples of accidentalia
Delivery and performance modalities
Common accidentalia include:
- Delivery period and place
- Payment terms (e.g. due date, early payment discounts)
- Retention of title
- Contractual penalties (penalties for non-performance)
- Choice of currency for performance and payment
Securities and guarantees
Agreements on securities, sureties, and guarantees also fall under accidentalia, provided they do not determine the very nature of the contract.
Jurisdiction and applicable law
Jurisdiction agreements and choice of law clauses are also regarded as accidentalia, as they concern the court’s jurisdiction and the applicable law.
Legal consequences in disputes over accidentalia
Supplementary contract interpretation
If accidentalia are indefinite or absent, a supplementary interpretation is performed in accordance with §§ 133, 157 BGB, reflecting the mutual intent of the parties. If no agreement can be reached, the statutory provision serves as a fallback.
Invalidity of individual accidentalia
If individual accidentalia are invalid, for example due to violation of mandatory legal requirements, the remainder of the contract generally remains effective (§ 306 BGB). Only in exceptional cases can the invalidity result in the entire contract being void if it cannot be maintained without the relevant provision.
Importance of accidentalia in everyday legal practice
Accidentalia play a central role both in the conclusion of complex contracts—such as in commercial contracts or real estate law—and in everyday legal transactions. Individually tailored provisions can help avoid uncertainties and disputes, and effectively safeguard the respective interests.
This article provides a comprehensive overview of the concept of accidentalia and their legal significance. Accidentalia are a central component of contractual structuring possibilities and gain particular practical relevance in contract interpretation and dispute resolution.
Frequently asked questions
When does a dispute over accidentalia arise in a legal context?
A dispute over accidentalia arises in a legal context when the parties to a legal dispute cannot necessarily reach agreement on accidentalia, i.e. incidental or accompanying circumstances of a legal relationship, and such dispute requires legal assessment. Accidentalia are distinguished from essential features (essentials), for example, in contract law from the so-called essentialia negotii, meaning the necessary components of a contract. Thus, a dispute about accidentalia usually concerns marginal conditions of a contract, such as payment modalities, delivery deadlines, or performance specifications, as long as these do not touch the core (the essence) of the legal transaction. In such a dispute, courts must determine whether and to what extent agreement has already been reached on the disputed points, or whether supplementary contract interpretation or contract adjustment is necessary. The legal assessment also significantly depends on how the parties should reasonably understand the contested issue in good faith and taking into account trade practices.
What legal standard is used to assess disputes regarding accidentalia?
The assessment of whether a clause or circumstance is an accidentalia or essentialia is based on the objective recipient’s perspective, as developed in general contract law (§§ 133, 157 BGB). The decisive factor is how a reasonable party would have understood the relevant side provision, taking into consideration trade practices, industry standards, and the overall context of the legal transaction. In particular, it is examined whether the provision is indispensable for the formation or validity of the contract (essentialia), or if it merely pertains to the structuring without affecting the underlying relationship (accidentalia). In case of uncertainty, the contract is interpreted supplementarily, with the aim of determining the hypothetical will of the parties and closing gaps appropriately.
What are the legal consequences if accidentalia are regulated inconsistently when concluding a contract?
If accidentalia are not conclusively regulated or are even interpreted differently during contract negotiations, this may have various legal consequences. As a rule, the contract as such remains valid, provided that agreement has been reached on the essentials. In the event of a dispute over accidentalia, the gap is either filled by supplementary contract interpretation or, if that is not possible, by dispositive statutory provisions. Only if the parties fail to agree on the essential contractual parts (essentialia) does the contract as a whole fail. The inadequate regulation of accidentalia can become particularly relevant in cases of performance disruptions, claims for damages, or adjustments under § 313 BGB (“frustration of contract”).
How do courts typically proceed in a dispute over accidentalia?
Courts first examine whether, in the present case, the dispute is actually about mere accidentalia or rather about essential contractual components. For this, they analyze the correspondence, the parties’ conduct, and the objective purpose of the legal transaction. This is usually followed by a supplementary contract interpretation, in which the court examines what hypothetical intention the parties would have had if they had considered the issue of accidentalia. The key provisions are §§ 133, 157 BGB for civil law; secondary criteria such as trade customs, template contracts, and previous business transactions can also be considered. Depending on the result, the gap is appropriately closed or recourse is made to statutory dispositive provisions. Only in exceptional cases, such as insurmountable interpretative obstacles, might the entire transaction be considered null and void.
What is the significance of accidentalia in connection with the severability clause?
The so-called severability clause is often used in German contract law to ensure the validity of the contract even if individual, usually accidental, provisions are void or invalid. Such a clause stipulates that the rest of the contract remains in force and that the parties are generally obligated to fill the relevant gap in accordance with their presumed intention. In the context of accidentalia, this clause is of particular importance, as disputes over incidental conditions can thus be specifically referred to supplementary regulation or performance, drawing on industry practice or statutory regulations. However, even a severability clause is of no help if essentialia are invalid—in such cases the entire contract is void.
How do accidentalia influence the sequence of examination in the legal expert opinion style?
Within the framework of the expert opinion style, the distinction between essential and accidental contract points is made after establishing the legal standard of review. Accidentalia are only considered after determining the fundamental legal facts (that is, the essentials). In the further execution, they are taken into account when examining requirements for validity, supplementary contract interpretation, and if applicable, in connection with objections such as frustration of contract or claims arising from culpa in contrahendo (§§ 280 para. 1, 311 para. 2 BGB). The explicit presentation and distinction of accidentalia is therefore essential for a stringently structured expert opinion and the correct attribution of legal consequences.
Can accidentalia be changed unilaterally afterwards?
As a matter of principle, accidentalia—as they are merely ancillary provisions—cannot be unilaterally changed without the consent of all parties. Like all parts of a contract, they are subject to the principle of consensus under civil law—meaning changes require a new agreement (modifying consensus). Exceptions exist only in cases of statutory provisions, works agreements, or framework agreements with authority to amend. Likewise, dynamic reference clauses or reservation of adjustments may be included in a contract, which allow for unilateral adjustment under certain (usually limited) conditions. Without such authorization, any unilateral attempt at amendment in the case of a dispute will be ineffective and the original state remains binding.
