How are clauses in laws numbered
Terms and Conditions (GTC)
Use and formulation of terms and conditions
Are general terms and conditions necessary?
General terms and conditions have become an integral part of today's business life. They create a uniform and detailed regulation of legal relationships for the mass contract and thereby simplify business transactions.
They are usually even indispensable if there is no legal regulation for the desired type of contract (e.g. factoring, leasing, franchise contract), is not sufficient or does not fit due to changed economic circumstances.
Furthermore, they make it possible to further develop inexpedient laws through new regulations (e.g. introduction of a right to amendment in sales law) or to specify indefinite legal terms (if the law only speaks of "reasonable" deadlines, for example, these can be precisely defined in the terms and conditions).
Although there is no obligation to use general terms and conditions due to the freedom of contract, it is usually recommended in operational practice to draw up and use general terms and conditions for the reasons of expediency mentioned above.
How are terms and conditions to be designed?
The general terms and conditions user arrives Comprehensibility requirement. They must be formulated in such a way that they can be understood by a non-lawyer (ineffective, e.g. the clause: "§ 627 BGB is inapplicable"). The customer must be able to take note of them in a reasonable manner. This includes that the terms and conditions used must be easily perceptible and legible (e.g. not just with a magnifying glass).
How do general terms and conditions become part of the contract?
Since the terms and conditions are not automatically included in the contract, even the best terms and conditions are not included (so-called. Inclusion Agreement) worthless.
In business dealings with private consumers, strict standards must be applied due to their particular need for protection with regard to the inclusion requirements:
When the contract is concluded, there must be an express reference to the terms and conditions.
It is not sufficient if the user has printed his terms and conditions on the back of the offer letter, but does not indicate them on the front. The first reference to the validity of the terms and conditions in invoices, receipts, delivery notes and order confirmations is also too late!
If there is no personal contact with the customer, such as in parking garages, car washes, etc., a clearly visible notice of the terms and conditions is sufficient. This should also be sufficient in shops, provided that low-value mass-produced items are sold there.
In the opinion of some courts, for contracts to be concluded electronically (Internet contract conclusion) it is not sufficient to refer to the terms and conditions with a button or link. In the case of offers on the Internet, the user must point out that the terms and conditions are to be included in the contract. Technically, this can be done by placing an order only if the alternative "Inclusion of the terms and conditions" has been clicked on beforehand. The interested party must be able to copy particularly extensive terms and conditions by downloading them free of charge.
Furthermore, the user of the terms and conditions must offer the other contracting party the opportunity to take reasonable notice of the content of the terms and conditions.
This is usually achieved by presenting the customer with clear terms and conditions. It is up to him whether he actually reads it through. For this reason, the customer can also do without the submission of the terms and conditions (problem of proof!), Which is particularly important when contracts are concluded by telephone. If he is not ready to do this, the contract can also be concluded by telephone under the condition precedent that the customer subsequently approves the terms and conditions to be transmitted to him.
In the case of contract offers on the Internet, the customer should have the opportunity to save the terms and conditions on his hard drive and, if necessary, to print them out.
The focus is on the average customer, i.e. the user does not generally need to have a translation of the terms and conditions available for foreigners living in Germany. In cross-border business transactions, however, it must be ensured that the reference to the terms and conditions and their text are written in the language of the negotiation (or in a world language - English, French).
Finally, the customer must agree to the validity of the terms and conditions, which is always the case when he agrees to the conclusion of the contract when the above conditions are met.
In the case of contracts with traders and freelancers (if they act as entrepreneurs), it is sufficient for the customer to be able to recognize the intention to include the general terms and conditions on the part of the contractual partner and not to object. For reasons of legal security, however, an express reference to the use of the terms and conditions is recommended.
If the contractual partners are in ongoing business relationships and the general terms and conditions were regularly used as a basis, the customer is obliged to expressly object to the inclusion of the previous terms and conditions if he no longer agrees with their validity. The same applies if certain general terms and conditions are always applied as is customary in the industry (especially in the forwarding, banking, insurance business). If both contracting parties use general terms and conditions, only the corresponding clauses apply. Otherwise, the corresponding statutory regulation applies (e.g. if the clause "Postage is borne by the buyer" is offset by the clause "Transport costs are borne by the seller", the buyer bears the costs).
Is Every Clause Effective?
In order to counter the risk that users of the terms and conditions unilaterally pursue their interests at the expense of the contractual partners by exploiting their economic or intellectual inferiority (the scope of the terms and conditions is usually not foreseeable for the customer), terms and conditions are subject to the extent that they change or supplement legal provisions , a content control. So a clause is ineffective if it is the contracting party inappropriately disadvantaged. The standards are set by §§ 305 ff. BGB, which among other things contain catalogs of prohibited clauses.
The following clauses, for example, are then ineffective:
1. in contracts with end users
- A provision in the terms and conditions, according to which the user is not liable for grossly negligent breaches of contract, is ineffective.
- A clause that provides for an increase in payment for goods or services that are to be delivered or rendered within 4 months is also inadmissible.
- The customer buys a bike for 400 euros that is not in stock at the dealer and can therefore only be delivered in 2 months. If the list price has risen by 50 euros on the delivery day, this cannot be passed on to the customer.
- Sections 474 ff of the German Civil Code (BGB) apply to the purchase of consumer goods. To the detriment of the consumer, the purchase right can largely no longer be waived through contractual agreements. On the other hand, it is permissible to shorten the limitation period for claims for defects in used items to one year. A complete exemption from any liability for claims for defects is no longer possible, even in the case of used items.
2. in contracts with end users and companies:
- "Repair services only against prepayment"
- "The right of a customer to offset an undisputed counterclaim is excluded"
- as well as "jurisdiction agreements", insofar as they are used vis-à-vis private individuals or traders not entered in the commercial register. For example, the following agreement would be permissible: "If the customer is a merchant, a legal entity under public law or a special fund under public law, the court of the supplier's headquarters is responsible for all disputes arising from the contractual relationship."
3. Surprising clauses
Surprising clauses, i.e. such unusual provisions that must not be expected under any circumstances when the contract is concluded, will never become part of the contract.
Purchase of a used car from a used car dealer with the obligation of the customer to have the car regularly serviced and repaired by this dealer. Even if the customer has signed this clause, it will not take effect.
At unclear or ambiguous clauses If in doubt, this is at the expense of the user. The most favorable interpretation of the clause for the contractual partner then applies, since the user would have had the opportunity to express himself more clearly.
General terms and conditions in business dealings with entrepreneurs
General terms and conditions in business dealings with companies are not subject to quite as strict regulations. Business dealings with companies means that both contracting parties are companies, and includes any commercial or independent activity. In this case, some of the provisions of §§ 305 ff. BGB do not apply (§ 310 BGB).
For reasons of legal clarity and to avoid later legal disputes, however, it is advisable to refer to the terms and conditions in every contract offer and thus to offer the contractual partner the opportunity to include the offer on your contractual terms or to enter into new negotiations. If, after the conclusion of the contract, it turns out that both contracting parties wanted to make their (contradicting) terms and conditions part of the contract, it can generally be assumed that the terms and conditions of both parts will only become part of the contract insofar as they match. With regard to the contradicting clauses, the corresponding legal regulations apply.
In contrast to the relationship with the end consumer, the general terms and conditions are only subject to limited content controls in business dealings with companies.
All that is done is a general check based on good faith, which is intended to rule out any unreasonable disadvantage to a contractual partner. Here, too, one must not deviate from the essential basic idea of the legal regulation (Section 307, Paragraph 2 of the German Civil Code).
If you are in any doubt about the admissibility of a particular contractual clause, you should seek legal advice from a lawyer specializing in contract law.
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