Yes, according to general principles of Danish contract law and case law, there is a general obligation to use good faith when negotiating a contract under Danish law.
For example, each party is to some extent obligated to highlight unusual or particularly onerous terms in a contract and, as for the vendor, to disclose any relevant material facts.
If a party does not comply with the obligation to use good faith when negotiating a contract, this may ultimately result in a court setting aside specific terms in the contract or even the contract in its entirety. In addition, failure to comply with this obligation may – depending on the situation – result in liability for the defaulting party.
‘Battle of the forms’ disputes
How are ‘battle of the forms’ disputes resolved in your jurisdiction?
There is no clear answer to the problem of the ‘battle of the forms’ under Danish law, and there are several different approaches as to how a battle of forms should be resolved. Most often, the solution to the problem will be the use the so called last shot doctrine, according to which the general terms and conditions that were sent last by one party without objections from the other party applies.
Another solution is the so called knockout rule. This entails that the terms of the contract will consist of the terms that the parties undoubtedly have agreed to, and the background law filling out the content of the remaining terms. In other words, the non-conforming and conflicting terms knock each other out, and the conflicting terms are then replaced by background law.
Is there a legal requirement to draft the contract in the local language?
No, under Danish contract law there is no legal requirement to draft a contract in Danish. In general, Danish law is based on a principle of freedom of contract. Therefore, the parties are free to draft the contract in the language of their choice.
In a pending lawsuit before a Danish court regarding a specific contract, where the contract is drawn up in English, Norwegian, or Swedish, it is generally not necessary to submit a translated version of the contract to the Danish court. However, specific circumstances may result in the court or the opposing party requesting a translated version. As a general rule, Danish courts require a translation if the document is in a foreign language other than English, Norwegian or Swedish.
Signatures and other execution formalities
In what circumstances are signatures or any other formalities required to execute commercial contracts in your jurisdiction? Is it possible to agree a B2B contract online (eg, using a click-to-accept process)? Does the law recognise the validity of electronic and digital contract signatures? If so, how are they treated in comparison to wet-ink signatures?
Under Danish law, a contract comes into existence and obtains binding effect through an offer and an acceptance of that offer. It is a fundamental principle under Danish law that a promise – whether declared verbally or in writing – is binding because the promisor by giving the promise has declared its will to perform it. In general, Danish law does not set out formal requirements for the conclusion of contracts. However, written offers and acceptances increase the possibility of proving that a contract has been entered into, if such a disagreement should arise.
That said, there are – as an exception to the aforementioned rule – a few statutory provisions that require some types of contracts to be made in writing.
As for the possibility to enter into a B2B contract online (eg, by use of a click-to-accept process) this is accepted under Danish law.
Furthermore, Danish law recognises the validity of electronic and digital contract signatures. Electronic and digital contract signatures are treated the same way as wet-ink signatures. In the end, it is a question of evidence, and it is up to the courts to decide if a binding contract has been concluded. Therefore, it is recommended to use a certified signature solution.
