General Terms and Conditions (Austria)
General terms and conditions (GTC) are formulated to standardize the transactions to be concluded. The contracts are to be concluded on the basis of the GTC. The use of general terms and conditions makes sense where many contracts with largely identical content are concluded. If the contractual partner is a consumer within the meaning of the Consumer Protection Act (KSchG), numerous mandatory special regulations apply. Directive 93/13 / EEC was implemented in Austria in the (KSchG); in particular, the regulations on “Inadmissible contract components ” are contained in Section 6 KSchG. It is advisable to create a separate version of the terms and conditions for consumption customers.
Validity of the terms and conditions
The contractual partners must agree on the validity of the GTC. It is not enough to display or display the desired terms and conditions in the company, for example. The mere transmission together with the order offer does not mean that the contractual partner knows and accepts the terms and conditions. The printing of terms and conditions on invoices or delivery notes generally has no effect. In order to be able to rule out that the contractual partner later disputes the validity of the General Terms and Conditions, their validity should be pointed out particularly clearly when the contract is concluded.
Framework agreement
In the case of permanent business relationships with contractual partners, it is advisable to make a one-off framework agreement in advance that all future transactions are only concluded on the basis of certain and demonstrably accepted terms and conditions.
Disadvantageous, unusual and surprising clauses
If the contractual partner has not been specifically advised of disadvantageous, unusual or surprising clauses in terms and conditions or contract forms, these do not apply. This also applies if the contractual partner had to reckon with them based on the circumstances surrounding the contract and the external appearance. Whether a clause in the general terms and conditions has the effect of being taken by surprise or being duped and is therefore ineffective must be assessed on a case-by-case basis. This also depends on the industry standard and the expectations of the target group.
Objectively appropriate terms and conditions
If the terms and conditions unduly worsen the position of the contractual partner and cause a gross disproportion between performance and consideration, they violate morality and therefore do not apply. The courts will decide whether or when this is the case, taking into account all the specific circumstances.
Provisions in terms and conditions that grossly disadvantage a contractual partner and do not affect the main contractual services are in any case void and therefore invalid. Whether a gross disadvantage of the contract partner in a secondary point is to be assumed depends on the respective circumstances of the specific case at the time of the conclusion of the contract and thereafter. In addition, whether there is an objective justification for the deviation from the general legal situation.
Use of conflicting terms and conditions
If both contractual partners use general terms and conditions that contradict each other, neither one nor the other clause is effective. Rather, the basic legal regulation applies (knock-out rule).
Interpretation of unclear terms and conditions
Unclear provisions will be interpreted to the detriment of the contractual partner who chose the wording. In the case of consumer transactions, unclear clauses are entirely ineffective.
Visibility of the terms and conditions in business premises
Traders who regularly use terms and conditions are obliged to issue or display them in the business premises intended for customer traffic. In the event of disregard, the responsible trade authority can impose a fine of up to 1,090 euros. For individual industries (e.g. banks, insurance companies, telecommunications companies, etc.) there are more far-reaching legal obligations when using terms and conditions.
Written form in terms and conditions
Outside of the Consumer Protection Act , the general terms and conditions can be requested in writing. In the area of application of the Consumer Protection Act, a distinction must be made whether it is a declaration by the entrepreneur to the consumer or the consumer to the entrepreneur. Only in the latter case can the written form be requested as a rule.
Important instructions
There are numerous other mandatory special regulations in the area of application of the Consumer Protection Act. In addition, when using illegal or unclear or incomprehensible formulated to clauses against consumers associations such as the Association for Consumer Information I (VKI) and Labor (AK) the entrepreneur injunction complain ( class action ).
Commonly used clauses
Exclusion of claims for damages
The exclusion of liability for personal injury is generally ineffective. Otherwise, liability exclusions as well as the shortening of the limitation periods or changes in the distribution of the burden of proof outside of the KSchG are largely possible. Within the scope of the KSchG, liability can only be excluded for slight negligence . Deadlines can neither be shortened nor can the burden of proof be changed in consumer transactions.
Exclusion of warranty claims
Warranty claims cannot be changed or even excluded in terms and conditions within the scope of the KSchG. There is a risk of collective actions by the VKI, the AK or the like. Outside of the KSchG, there is largely contractual freedom .
Retention of title
Since the retention of title usually lapses in the event that the item is resold, the assignment of the purchase price claim against the third party to the conditional seller should be agreed in advance.
Offsetting prohibitions
Under certain circumstances, these make it extremely easy to collect claims, since counterclaims cannot be offset. However, such prohibitions are largely inadmissible within the scope of the KSchG.
Individual evidence
- ↑ 93/13 / EEC (PDF; 32 kB)
