Conditions
Terms of Service:
1. What are general terms and conditions?
1.1. Two-sided legal transaction
1.2. Pre-formulation
1.3. Mass business
2. Area of application
2.1. Objective scope
2.2. Personal scope
3. Inclusion of the general terms and conditions in contracts
3.1. Consumer contracts
3.2. Contracts with companies
4. Contradicting general terms and conditions
5. Surprising clause
6. Unclear general terms and conditions
7. Priority of the individual agreement
8. Content control of general terms and conditions
8.1. In consumer contracts
8.2. In contracts with companies
9. Ineffective general terms and conditions that are not effectively included
10. Tips on general terms and conditions
Appendix: Extract from the Civil Code
This IHK information provides an overview of the problems with practical information that frequently occur when using general terms and conditions (hereinafter referred to as terms and conditions). It is intended to assist in the inclusion of general terms and conditions in the contractual relationship in accordance with §§ 305 ff. BGB and was drawn up with great care. However, liability for the correctness cannot be accepted.
1. What are general terms and conditions?
According to § 305 BGB, general terms and conditions are all contractual terms pre-formulated for a large number of contracts that one contracting party (= user) provides to the other party when the contract is concluded. General terms and conditions are subject to control by §§ 305 ff. BGB.
1.1. Two-sided legal transaction
In principle, the scope of protection of the obligations that arise from the use of general terms and conditions requires a two-sided legal transaction. Two-sided legal transactions are contracts that are concluded by an offer and acceptance by both parties. Examples of this are the purchase contract and contract for work.
However, one-sided legal transactions of the customer can also be based on terms and conditions. This is the case if the user intervenes in the customer's freedom of design by formulating unilateral customer declarations.
Examples: pre-formulated power of attorney, order forms, direct debit mandates, transfer orders, compensation receipts.
1.2. Pre-formulation
Pre-formulation requires that the contractual terms are not negotiated individually for each case, but rather are set up as the basis or framework for similar legal transactions. Actual multiple use is not important, however. It is also sufficient to use the same wording without a written form.
1.3. Mass business
The characteristic of the multitude should emphasize the general terms and conditions of the general terms and conditions. In practice, however, this feature hardly plays a role. In general, the constant expansion of the term of the general terms and conditions by the legislature and the jurisprudence have meant that a written contract almost always has to be regarded as general terms and conditions.
Note: Not every company needs terms and conditions. GTC make it easier to conclude and process a large number of similar contracts, but it is up to each user to decide whether to use pre-formulated contractual terms.
2. Area of application
2.1. Objective scope
The regulations on the use of general terms and conditions in §§ 305 ff. BGB apply to almost all types of contract.
However, an exception are contracts in the field of inheritance, family and company law, which according to § 310 Paragraph 4 BGB do not fall under the provisions of §§ 305 ff. BGB. When applying to employment contracts, the special features of labor law must be adequately taken into account and the provisions of §§ 305ff only partially applied.
2.2 Personal scope
Due to their consumer protection function, §§ 305 ff. BGB only apply when using the General Terms and Conditions for consumers.
If general terms and conditions are used against entrepreneurs, the regulations apply only to a limited extent. See below for details.
According to § 13 BGB, an entrepreneur is someone who acts in the exercise of his commercial or independent professional activity. This also includes small businesses not registered in the commercial register.
3. Inclusion of the general terms and conditions in contracts
3.1. Consumer contracts
The inclusion of the terms and conditions takes place through a concrete offer of inclusion by the user (§ 305 Abs.2 BGB). The following requirements must be met for effective inclusion:
a) Notice from the user
When concluding the contract, the consumer must explicitly inform the user of the terms and conditions verbally or in writing that the contract should be concluded including the terms and conditions.
A note in a contract form, offer letter, order form and the like must be written in such a way that it catches the eye of an average customer.
Tip: Use at least the same font size for the information as for the rest of the contract text and highlight it in bold.
A clearly visible notice at the place of conclusion of the contract is sufficient only if it is possible to indicate the type of contract with great difficulty. This applies to contracts in everyday life, which are typically concluded verbally or with the help of an automatic machine.
Examples: posting of general terms and conditions in retail, in cleaning, in restaurants or parking garages
b) Possibility of taking notice
The consumer must be able to read the content of the terms and conditions. If both contracting parties are present when the contract is concluded, the general terms and conditions must be presented to the consumer.
Examples: In the case of mass transactions, this is done through the clearly visible posting of general terms and conditions, for example in department stores, in dry cleaners, in restaurants.
If the contract is only concluded in writing, it is sufficient to send the terms and conditions. The mere request to view the terms and conditions at the user is generally not sufficient, as otherwise the contractual partner will be charged beyond what is reasonable.
Examples: The general terms and conditions can be printed on the catalogs, price lists, brochures sent to the customer before the contract is concluded or in the contract form itself.
If the contract is concluded by telephone, the contractual partner must also be given the opportunity to take note of it. This is not a problem if the contractual partner already has a catalog, price list or similar with the user's terms and conditions printed on it when the contract is concluded. Otherwise, the express reference of the user to the inclusion of the General Terms and Conditions is sufficient even when the contract is concluded by telephone. It is then up to the consumer to decide whether the essential content of the General Terms and Conditions should be read over the phone or to waive the immediate conclusion of the contract and wait for the General Terms and Conditions to be sent.
When concluding the contract on the Internet, a particularly clear reference to the terms and conditions is to be given, as well as the option of calling up the terms and conditions with a click. With extensive terms and conditions, a free download should also be possible.
Note: When concluding contracts by means of long-distance communication, such as telephone, fax, e-mail, Internet, the regulations on distance selling contracts in Sections 312b ff. BGB must also be observed in consumer contracts. These are consumer protection regulations which regulate the entrepreneur's special information requirements and the consumer's right of withdrawal. See the IHK information on distance contracts and door-to-door sales.
c) Declaration of consent by the consumer
The consumer must agree to the inclusion of the terms and conditions in the contract. However, an agreement on each individual clause is not necessary, rather the blanket agreement of including certain terms and conditions is sufficient.
3.2 Contracts with entrepreneurs
For the effective inclusion of general terms and conditions in contracts with entrepreneurs, less stringent requirements apply (section 310 (1) BGB). However, an express or tacit agreement by the contracting parties is required. All that is needed is a reference from the user to his terms and conditions, which gives the contractual partner the opportunity to gain insight into them in a reasonable manner, also on their own initiative.
Examples:
• Notice of the user to his terms and conditions without contradiction by the other contracting party
• Enclosure of the reprint of the terms and conditions in the offer without express reference to it in the offer itself.
• If the use of general terms and conditions is customary in the industry, the user's offer leads to inclusion even without express reference. However, this does not apply to contract partners who are typically not familiar with the industry.
• In the context of ongoing business relationships, the inclusion can take place automatically if the general terms and conditions of the user have been a regular part of the contract so far and the contractual partner does not object. However, a one-off earlier contract or a short duration of business relationships is not sufficient.
In order to prevent tacit inclusion, the contract partner must object.
The mere knowledge of the contract partner that the user is based on general terms and conditions when concluding contracts is not sufficient for tacit inclusion of the general terms and conditions.
4. Contradicting general terms and conditions
In business transactions between companies in particular, there is often the problem of contradicting terms and conditions, since each contract side tries to include its own terms and conditions in the contract. Contradicting general terms and conditions do not, in principle, stand in the way of the effectiveness of the contract if the parties agree to start executing the contract. In this case, only the corresponding parts of the terms and conditions apply as agreed.
As far as the general terms and conditions do not agree, the following applies with regard to the effective content of the contract:
• First, the contradicting terms and conditions become part of the contract insofar as they are favorable for the other contracting party. In practice, this is probably the exception, since the terms and conditions were created in the interests of the user.
• All other non-conforming terms and conditions are not part of the contract. If no regulation can be determined after interpreting the contract and taking into account the interests of the contracting parties, the conflicting terms and conditions are replaced by the statutory regulation (Section 306 (2) BGB).
5. Surprising clauses
Clauses in effectively included terms and conditions do not become part of the contract if they are so unusual after the special circumstances of the conclusion of the contract that the contract partner does not have to reckon with them. A clause is to be regarded as surprising if the contractual partner is overpowered or duped by it to a certain extent.
Relevant criteria for this are, in particular, the negotiations preceding the conclusion of the contract, the external appearance and the unusualness of the clause for contracts of the type in question. It should be noted that depending on the type of the contract partner, the possibilities of understanding of the respective average contract partner must be taken into account.
Note: Since the possibilities of the contractual partner have to be taken into account, a clause that is considered surprising for a consumer can be classified as harmless and not surprising for an entrepreneur in individual cases.
As a rule, the clause is not considered to be surprising if it is highlighted in terms of printing technology in such a way that it can be assumed that the contractual partner will have read it.
6. Unclear general terms and conditions
If unclear or ambiguous clauses are contained in the terms and conditions, this is at the expense of the user (§ 305c Abs.2 BGB). The user should therefore make absolutely sure that he expresses himself clearly and unambiguously in the terms and conditions.
Example:
• The clause in a motor vehicle rental contract that the tenant or a driver must prove a valid driver's license with one-year driving experience is unclear, because it is not clear whether this requires an uninterrupted one-year driving experience or whether one year of total driving experience is sufficient for several years of driving license.
• The clause "used by a dealer in a used car sales contract" The seller warrants that the vehicle, as far as he knows, has a total mileage of x kilometers ", is to be understood as a guarantee at the user's expense.
7. Priority of the individual agreement
Individual contractual agreements take precedence over general terms and conditions (§ 305b BGB), since the general terms and conditions only supplement what has been agreed individually. An individual agreement exists if the contracting parties have discussed and negotiated the relevant point together or have agreed in writing.
Note: Handwritten additions and additions to a form contract are generally considered as individual agreements, even if such additions are excluded in the terms and conditions. This is not the case if a contractual partner changes a certain printed clause of the terms and conditions without first negotiating this with the opposite party.
8. Content control of general terms and conditions
Sections 307 ff. BGB regulate which content is not permitted in the terms and conditions.
8.1. In consumer contracts
The content-related design freedom of contracts towards consumers is severely restricted by an extensive catalog of inadmissible or only partially admissible clauses (§§ 308, 309 BGB) and by a general clause (§ 307 BGB), cf. Text in the attachment.
A general terms and conditions clause that violates the catalog of §§ 308, 309 BGB is ineffective. A clause in the General Terms and Conditions that violates § 307 BGB is also ineffective. The general clause in 307 BGB reflects the principle of good faith in business dealings and serves as a starting point for clauses that are not mentioned in §§ 308, 309 BGB.
There is an almost unmanageable case law on the application of § 307 BGB, which cannot be listed here.
8.2. In contracts with entrepreneurs
When using general terms and conditions for entrepreneurs, the detailed prohibitions in clauses in § 308 and § 309 BGB are not applicable according to § 310 Abs.1 BGB. A content check of the terms and conditions takes place here only via § 307 BGB.
Note: The prohibition of clauses in §§ 308, 309 BGB are, however, in the context of balancing the interests of § 307 BGB usually an indication of the ineffectiveness of a clause even for entrepreneurs.
9. General terms and conditions that are not effectively included and are ineffective in terms of content
If the general terms and conditions or individual terms and conditions have not become an integral part of the contract or are ineffective in accordance with sections 307, 308, 309 BGB, the contract as a whole remains in effect (section 306 (1) BGB). Instead of these terms and conditions, the statutory provisions apply (§ 306 Paragraph 2 BGB).
Note: The closing of the contractual loophole through the application of statutory law cannot be prevented by referring to replacement terms and conditions.
In extreme cases, the contract may be ineffective overall due to the defective terms and conditions (§ 306 para. 3 BGB) if the continuation of the contract would represent an unreasonable hardship for the other party.
10. Tips on general terms and conditions
The Bundeskartellamt maintains a list of general terms and conditions recommended by industry associations. You can find these on the Internet at http://www.bundeskartellamt.de under the heading Service Pages for SMEs. Registration with the Federal Cartel Office does not ensure that the terms and conditions are fully correct.
Various branch-specific terms and conditions are also available in bookstores.
Note: Model contracts and models for general terms and conditions can only be a guide, which must be adapted to the individual circumstances. If this is appropriate according to the type of transaction, it is recommended in case of doubt to negotiate the contractual clauses individually. In addition, corresponding samples must always be checked for the respective state of legal development before use.
Appendix: Extract from the Civil Code (§§ 307 ff.)
§ 307 content control
(1) Provisions in general terms and conditions are ineffective if they unreasonably disadvantage the contractual partner of the user contrary to the requirements of good faith. Inappropriate disadvantage can also result from the fact that the provision is not clear and understandable.
(2) In case of doubt, an inadequate disadvantage is to be assumed if a provision
1. is incompatible with the essential principles of the statutory regulation from which there is a deviation or
2. Restricts essential rights or obligations that arise from the nature of the contract in such a way that the achievement of the purpose of the contract is jeopardized.
(3) Paragraphs 1 and 2 as well as Sections 308 and 309 only apply to provisions in general terms and conditions by which regulations deviating from or supplementing legal provisions are agreed. Other provisions may be ineffective in accordance with paragraph 1 sentence 2 in conjunction with paragraph 1 sentence 1.
Section 308 Clause bans with the possibility of scoring
In general terms and conditions is particularly ineffective
1. (Acceptance and performance period)
a provision by which the user reserves inappropriately long or insufficiently specified deadlines for accepting or rejecting an offer or performing a service; with the exception of this, the reservation is only to be made after the expiry of the cancellation or return period in accordance with § 355 paragraphs 1 and 2 and § 356;
2. (grace period)
a provision whereby the user reserves an inappropriately long or insufficiently defined grace period for the service to be performed, in deviation from legal provisions;
3. (reservation of withdrawal)
the agreement of a right of the user to release himself from his obligation to perform without objectively justified and specified in the contract; this does not apply to permanent obligations;
4. (Subject to change)
the agreement of a right of the user to change or deviate from the promised service, unless the agreement of the change or deviation is reasonable for the other contracting party, taking into account the interests of the user;
5. (Fictitious explanations)
a stipulation that a declaration by the contractual partner of the user is deemed to have been made or not to have been made when a specific action is taken or omitted, unless
(a) the contracting party has been given a reasonable time to make an express declaration; and
b) the user undertakes to inform the contracting partner of the intended importance of his behavior at the beginning of the period;
6. (fiction of access)
a provision which stipulates that a declaration by the user of particular importance is deemed to have been received by the other party to the contract;
7. (processing of contracts)
a provision according to which the user in the event that a contracting party withdraws from the contract or terminates the contract,
(a) an inappropriately high remuneration for the use or use of a thing or a right or for services rendered or
b) may request an inappropriately high reimbursement of expenses;
8. (unavailability of the service)
the agreement permissible under number 3 of the user's reservation to release himself from the obligation to fulfill the contract if the service is not available if the user does not undertake
a) to inform the contracting party immediately of the unavailability and
b) to reimburse the counterparty immediately.
§ 309 clause bans without evaluation
General terms and conditions are also ineffective if a deviation from the statutory provisions is permitted
1. (Short-term price increases)
a provision that provides for an increase in the remuneration for goods or services that are to be delivered or rendered within four months of the conclusion of the contract; this does not apply to goods or services that are delivered or rendered within the framework of permanent obligations;
2. (Right to refuse performance)
a determination by which
a) the right to refuse performance, which the contractual partner of the user is entitled to pursuant to Section 320, is excluded or restricted, or
b) a right of retention to which the contractual partner of the user is entitled, insofar as it is based on the same contractual relationship, is excluded or restricted, in particular is made dependent on the acceptance of defects by the user;
3. (No setoff)
a provision by which the contractual partner of the user is empowered to offset an undisputed or legally established claim;
4. (Reminder, setting a deadline)
a provision by which the user is exempted from the legal obligation to warn the other party to the contract or to set a deadline for performance or supplementary performance;
5. (Flat-rate claims for damages)
the agreement of a flat-rate claim by the user for damages or compensation for an impairment, if
(a) the lump sum exceeds the damage to be expected in the regulated cases after the ordinary course of things or the usually occurring impairment, or
b) the other party to the contract is not expressly permitted to prove that no damage or impairment occurred at all or that it was significantly lower than the lump sum;
6. (contractual penalty)
a provision by which the user is promised payment of a contractual penalty in the event of non-acceptance or delayed acceptance of the service, late payment or in the event that the other part of the contract is released from the contract;
7. (Disclaimer in the event of injury to life, limb, health and gross negligence)
a) (injury to life, body, health)
an exclusion or limitation of liability for damage resulting from injury to life, limb or health that is based on a negligent breach of duty by the user or an intentional or negligent breach of duty by a legal representative or vicarious agent of the user;
b) (gross negligence)
an exclusion or limitation of liability for other damages which are based on a grossly negligent breach of duty by the user or on an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the user;
letters a and b do not apply to liability restrictions in the conditions of carriage and tariff regulations for trams, trolleybuses and motor vehicles for scheduled services approved in accordance with the Passenger Transport Act, insofar as they do not adversely affect passengers from the Ordinance on the General Conditions of Carriage for Trams and Trolleybuses as well as Regular traffic with motor vehicles from February 27, 1970 deviate; Letter b does not apply to limitations of liability for state-approved lottery or game contracts;
8. (Other disclaimers in the event of a breach of duty)
a) (exclusion of the right to withdraw from the contract)
a provision which, in the event of a breach of duty for which the user is responsible and which does not consist of a defect in the purchased item or the work, excludes or limits the right of the other contracting party to withdraw from the contract; this does not apply to the conditions of carriage and tariff regulations specified in number 7 under the conditions specified there;
b) (defects)
a provision by which contracts for deliveries of newly manufactured goods and work performance
aa) (exclusion and referral to third parties)
the claims against the user due to a defect as a whole or in relation to individual parts are excluded, limited to the granting of claims against third parties or made dependent on the previous judicial claims of third parties;
bb) (limitation to supplementary performance)
the claims against the user as a whole or in relation to individual parts are limited to a right to subsequent performance, unless the other contracting party expressly reserves the right to reduce if the subsequent performance fails or, if a construction service is not the subject of liability for defects, at his or her choice of Withdraw from the contract;
cc) (expenses for supplementary performance)
the user's obligation is excluded or limited to bear the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs;
dd) (withholding of subsequent performance)
the user makes the supplementary performance dependent on the previous payment of the full fee or a disproportionately high part of the fee taking into account the defect;
ee) (exclusion period for notification of defects)
the user sets the other party to the contract for the notification of non-obvious defects, which is shorter than the deadline allowed by the double letter ff;
ff) (relief of limitation)
the limitation of claims against the user due to a defect in the cases of § 438 Paragraph 1 No. 2 and § 634a Paragraph 1 No. 2 is facilitated or in other cases a limitation period of less than one year from the start of the statutory limitation period becomes;
9. (term in case of permanent obligations)
in the case of a contractual relationship which involves the regular delivery of goods or the regular provision of services or work by the user,
a) a term of the contract binding the other part of the contract for more than two years,
(b) a tacit extension of the contractual relationship binding the other party to the contract by more than one year in each case or
c) at the expense of the other contracting party, a longer notice period than three months before the end of the initially planned or tacitly extended contract term;
this does not apply to contracts for the delivery of items sold together, insurance contracts and contracts between the owners of copyright and claims and collecting societies within the meaning of the law on the exercise of copyrights and related rights;
10. (Change of contract partner)
a provision according to which, in the case of purchase, loan, service or work contracts, a third party instead of the user enters or can enter into the rights and obligations arising from the contract, unless the provision specifies
a) the third party is named or
b) the other party to the contract has the right to withdraw from the contract;
11. (liability of the final representative)
a provision by which the user gives a representative who concludes the contract for the other part of the contract,
a) own liability or obligation to pay without express and separate explanation directed to it or
b) in the case of a power of attorney without representation, liability exceeding § 179
imposed;
12. (Burden of proof)
a provision whereby the user changes the burden of proof to the detriment of the other contracting party, in particular by:
(a) imposes the burden of proof on circumstances which are the responsibility of the user, or
b) has the other party to the contract confirm certain facts;
Letter b does not apply to acknowledgments of receipt that are signed separately or provided with a separate qualified electronic signature;
13. (form of notifications and explanations)
a provision by which advertisements or declarations to be submitted to the user or to a third party are bound to a form that is stricter than the written form or to special access requirements.