General terms of contract
Terms and conditions are in the industry via individual agreements beyond, for all contracts in force this type of contract components.
General
Contracts, in particular sales contracts , contain on the one hand the individual agreement - for example the delivery of "50 sacks of raw coffee (Arabica coffee) at the purchase price of ..." - on the other hand also the delivery and payment conditions . These represent typical general contract terms because they are intended as standard terms for every contract. The suppliers tend to deviate from this - if at all - only if the buyer has strong bargaining power . Contract conditions are not conditions in the legal sense, but part of a contract. General contractual conditions must be “set” ( Section 305 (1) BGB ), one of the contracting parties (usually the user ) must impose them on the other ( consumer ). A contractual condition is a declaration by the user that is intended to regulate the content of the contract . It exists when a general reference, based on its objective wording, gives the recipient the impression that it is intended to determine the content of a contractual or pre-contractual legal relationship .
Individual contract types
The general terms and conditions for construction work as well as rental and credit agreements are listed as examples.
Construction work
The procurement and contract regulations for construction works (VOB) also consist of part B ( VOB / B ), “ General contract conditions for the execution of construction works ”. The VOB / B is not a law , but according to prevailing opinion it has the character of general terms and conditions. As such, it only becomes part of the contract if its validity is agreed between the contracting parties. This usually happens because one contracting party (the user within the meaning of the general terms and conditions law ) bases the application of VOB / B in the tender or offer and the other contracting party offers or accepts the offer on this basis. The user must provide consumers with information about their content by handing over a print or otherwise give them the opportunity to take note of their content in a reasonable manner. With the agreement of the VOB / B also automatically VOB / C agreed that more detailed regulations includes the execution and settlement.
rental contract
The pre-printed rental agreement is usually completed by hand or with other additions. This includes additions or attachments. They apply as individual agreements that concern the specific residential or commercial property . Any further contractual terms and conditions are “set” by the landlord and are therefore subject to judicial content control if the landlord has used a contract form from the broker commissioned by him when concluding the lease.
Loan agreement
Negotiated often individually in the German banking contract credit conditions in the narrow sense (such as loan amount, loan type , loan rate , loan term or loan collateral ). The general terms and conditions of the credit institutions, which are always valid, are part of the general terms and conditions.
In international credit transactions, on the other hand, a large number of the model contractual clauses of the Loan Market Association are non-negotiable clauses. If credit institutions were to allow too many deviations from customary international contractual conditions, this would considerably reduce the chances of syndication or credit trading . Since international private law applies anyway , even clauses favoring creditors are legally effective in case of doubt.
Legal issues
Terms and conditions are generally the terms and conditions , because they like the individual agreements were not specifically discussed with the client and negotiated. Rather, they are legally valid as pre-formulated contractual conditions. Therefore, the general terms and conditions law (§ § 305 ff. BGB) applies to them , especially for consumers. Above all, surprising and ambiguous clauses are not part of the contract ( Section 305c (1) BGB), unclear and incomprehensible clauses are subject to judicial content control as unmeasured disadvantages in legal disputes ( Section 307 BGB). Certain clauses are prohibited ( § 308 BGB, § 309 BGB).
Individual evidence
- ↑ Meinhard Erben / Wolf GH Günther, Design and Management of IT Contracts , 2017, p. 93
- ↑ BGHZ 99, 374, 376
- ↑ BGHZ 133, 184 , 188
- ^ BGH, decision of December 14, 2010, VIII ZR 143/10
- ↑ Emanuel HF Ballo, The AGB control of loan agreements in acquisition financing , 2010, p. 101
- ↑ Chris Gayle, Acquisition Finance - Syndication Best Practice , in: International Company and Commercial Law Review 13 (8), 2002, p. 300 f.
