Secondary letters, i.e. secret agreements to clarify or modify issues that a primary contract does not cover, have a bad reputation. The general validity of an ancillary letter between the Contracting Parties seems clear, regardless of the applicable system. It is then possible to determine which legal aspects of page letters should be avoided (Part I) and which aspects could be recommended (Part II). In terms of form, a page letter is based on consensusism in most situations. Although secondary letters can in principle be concluded orally, the parties may wish to provide solid proof of them. Some transactions will even require legal formalism. An illustration is provided by the Civil Code (BGB), which stipulates that the purchase of a house must be made before the notary (§ 311b I 1 BGB), or is otherwise considered ineffective (§ 125 BGB). This paragraph shall also apply to accessory letters which are considered invalid if they do not comply with those formal requirements. This could affect the entire contract and render it invalid (§ 139 BGB).
Third, by changing the terms of the main contract, the secondary letter may change the characterization of the entire agreement. For example, in France, certain management leases are concluded by the parties in order to determine the actual qualification of a contract, i.e. the purchase of the company, to be hidden in the cover letter. The preamble to the sub-letter will both determine the intention of the parties and justify itself when it is made public. Due to the secrecy of the secondary letters, the confidentiality clause will also be a key element in determining the degree of (non-)disclosure desired. Court discussions on ancillary agreements extend until at least Grade 19. Century and probably earlier, and they are also a common feature of recent financial scandals, Cohen said. “There is at least some anecdotal and circumstantial evidence that collateral deals are a fairly important phenomenon that is at stake by fairly demanding people with a lot of money,” he said. “Collateral agreements used for fraudulent purposes tend to involve some kind of omission that hides the guarantee agreement and not the commission – that is, a false affirmative statement.” Collateral agreements effectively co-opt the other party (Merrill Lynch in the Enron example) so that they do not denounced the agreement.
Using the contract as property also facilitates the masking of property as material property, he said. But there`s a greater responsibility associated with this practice that your employees probably don`t know about. If your employees enter into “side agreements” with your customers, your merchant is likely violating your indirect credit agreements with your lenders. For example, the M&T Massachusetts Dealer Agreement (“M&T Agreement”) contains language that prohibits these “ancillary agreements.” Under the M&T agreement, a trader who contracts with M&T makes a confirmatory statement that the transferred contract is the only agreement between the client and the dealer on the transaction. The merchant also declares that the amount identified in the purchase contract as a “deposit” is correct and was actually received by the merchant in the form of a check or cash from the customer. An “ancillary sales contract” between the merchant and the customer violates these provisions and could jeopardize your credit relationship. Cohen gave the example of an Arkansas chicken company that needed a larger freezer to store supplies. The company entered into an agreement with a builder to sell the land on which the freezer was to be built and re-release it for six years to use for the freezer, with the possibility of buying back the property and freezer at fair market value. .