Standard terms are by definition prepared in advance by one party

or a third person and incorporated in an individual contract without

their content being discussed by the parties (see Art. 2.1.19(2)). It is

therefore logical that whenever the parties specifically negotiate and

agree on particular provisions of their contract, such provisions will

prevail over conflicting provisions contained in the standard terms

since they are more likely to reflect the intention of the parties in the

given case.

The individually agreed provisions may appear in the same

document as the standard terms, but may also be contained in a

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separate document. In the first case they may easily be recognised on

account of their being written in characters different from those of the

standard terms. In the second case it may be more difficult to

distinguish between the provisions which are standard terms and those

which are not, and to determine their exact position in the hierarchy of

the different documents. To this effect the parties often include a

contract provision expressly indicating the documents which form part

of their contract and their respective weight.Special problems may

however arise when the modifications to the standard terms have only

been agreed upon orally, without the conflicting provisions contained

in the standard terms being struck out, and those standard terms

contain a provision stating the exclusive character of the writing signed

by the parties, or that any addition to or modification of their content

must be in writing. For these cases see Arts. 2.1.17 and 2.1.18.