General Terms and Conditions (Germany)

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Terms and Conditions (abbreviated: Conditions ) are Law all for a variety of contracts pre-formulated contract terms that (the user) the other party (the contractor) at closing is a party to a contract.

General

The term general terms and conditions was the title of Ludwig Raiser's habilitation thesis in 1935 . The work of the same name by Raiser shaped the examination of the effectiveness of the AGB until the AGB law came into force in April 1977. Its provisions were largely incorporated into the German Civil Code in January 2002 . According to this, it is irrelevant for the characterization as general terms and conditions whether the provisions form a separate external component of the contract ( colloquially called " small print ", " contractual conditions " or " clauses ") or are included in the contract document itself. Likewise, it is irrelevant for the qualification as general terms and conditions "in which font they are written and what form the contract has" ( Section 305 (1) BGB). It is sufficient if, when formulating the contractual conditions, it is planned to use them in at least three cases. If companies use contract terms with consumers , these are subject to judicial review the first time. The regulations are also applicable in labor law , provided that the specifics applicable there are observed.

However, the terms and conditions only become part of the contract if the inclusion is effective. In general terms and conditions, no regulations deviating from the essential expectations may be made. The use of general terms and conditions is regulated in § § 305  ff. BGB. The restrictions can be found in Section 305c , Section 307 , Section 308 and Section 309 BGB.

meaning

In the context of the private autonomy prevailing in private law , the law does provide rules for certain types of contract, but mostly allows the contracting parties to make supplementary or different provisions in their contract in individual cases. Otherwise it is only when a legal provision not abdingbar is but imperative dictates that must not be compromised by it in contracts.

General terms and conditions have the effect that the conclusion of the contract is simplified, accelerated and standardized through a pre-formulated set of clauses. In the law of obligations , you can regulate new contract types that are not provided for in the law. As a rule, they change the distribution of risk and liability provided there, often in favor of the user ( liability clauses ) and make it easier for him to process the contract. At the same time, there is the danger that the user, usually an entrepreneur who is economically stronger and more experienced in business , can enforce unilateral and / or surprising regulations against a consumer that deviate too far from the assessments of the law. There is therefore a need to subject general terms and conditions to a control and to deny certain clauses their legal effectiveness. While this originally from BGB the Court was left to the individual clauses for void could tell if it immoral were, the legislature , which came into force on April 1, 1977 law regulating the right of the General Conditions (AGB-law) specific Regulations for handling terms and conditions created. The General Terms and Conditions Act was repealed by the law to modernize the law of obligations ; its regulations were taken over into the civil code with effect from January 1, 2002 with only minor changes (sections 305-310 BGB).

Inclusion

When general terms and conditions become part of the contract, it depends primarily on whether the recipient is a consumer according to § 13 BGB or an entrepreneur according to § 14 BGB.

  • Towards consumers: According to Section 305 (2) of the German Civil Code (BGB), terms and conditions only become part of the contract between the contracting parties if the user expressly indicates this when concluding the contract or, if this information is only possible with disproportionate difficulties, by means of a clearly visible notice at the place where the contract is concluded ( Section 305 para. 2 no. 1 BGB) and provides the other contracting party with the opportunity to take note of the content of the general terms and conditions in a reasonable manner, which also takes into account a physical handicap recognizable to the user ( Section 305 para. 2 no. 2 BGB ). The third prerequisite is that the other party agrees to the terms and conditions.
  • However, in accordance with Section 310 of the German Civil Code , this does not apply to terms and conditions between two entrepreneurs ( Section 14 BGB) . All that is required here is legal involvement, i.e. the usual requirements for the conclusion of contracts apply. This also includes: For effective inclusion, any even tacit agreement of will is sufficient here.

Inclusion is facilitated in the case of regular passenger transport and the conditions for telecommunications and post . Terms and conditions can also be included between two private individuals (e.g. in the case of a one-off rental agreement).

General terms and conditions (or an individual clause of the general terms and conditions) do not become part of the contract if they conflict with individual agreements; Section 305b BGB. (Example: A contract has been concluded between A and B, the content of which obliges A to deliver within 2 weeks. In contrast, the terms and conditions state that A has a delivery time of 6 weeks. The clause of the terms and conditions has not become part of the contract.)

Furthermore, general terms and conditions (or individual clauses of the general terms and conditions) do not become part of the contract if they are “surprising” for the recipient in accordance with Section 305c (1) BGB. A (clause of) the general terms and conditions is surprising if it is so unusual in the circumstances of the individual case that it need not be expected. (Example: A orders a land charge to secure a loan from B. The security purpose declaration (AGB) secures all existing and future liabilities of B. This extended liability of A is so surprising to him that the clause has not become part of the contract. )

Individual legal regulations

  • Individual contractual agreements have priority over general terms and conditions, § 305b BGB.
  • Surprising general terms and conditions, which the other party to the contract need not expect under the circumstances, do not become part of the contract, Section 305c (1) BGB.
  • Doubts in the interpretation of general terms and conditions are at the expense of the user, Section 305c (2) BGB.
  • Scope of the content control of general terms and conditions, § 310 BGB vis-à-vis companies, in labor law as well as special special regulations for the protection of consumers.
  • According to Section 310 (4) of the German Civil Code (BGB), the section on general terms and conditions does not apply to contracts in the field of inheritance, family and company law.

Content control

General terms and conditions are subject to a content control according to §§ 307–309 BGB. When checking the content, it should be noted that the law has set an unsuitable sequence of Sections 307–309 BGB. Since an examination has to be carried out from the specific to the general, the 3-part content check must always be started with Section 309 of the German Civil Code. Clause prohibitions are listed here that are ineffective in any case, i.e. without any evaluation options. (Example: If offsetting (§ § 387  ff. BGB) is excluded in the general terms and conditions , this clause is ineffective). After that, § 308 BGB must be checked. Here are some clauses that are only ineffective with a certain consideration, i.e. with evaluation options. When it is “inappropriate” is determined by the circumstances of the individual case. (Example: In everyday business, a period in the terms and conditions for accepting an offer of more than 14 days is usually unreasonably long. In some cases, this can be found in order or application forms). If the catalog in § 308 and § 309 BGB does not result in ineffectiveness, § 305c and § 307 BGB must always be observed. As a so-called general norm , Section 307 of the German Civil Code (BGB) stipulates that 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. Such a disadvantage can result from the fact that a provision is not clear and understandable (violation of the transparency principle ). In case of doubt, an unreasonable disadvantage is also to be assumed if a provision with essential basic ideas of the legal regulation, from which the deviation is made, cannot be agreed or if it restricts essential rights or obligations arising from the nature of the contract in such a way that the Achievement of the contractual purpose is at risk.

Section 310 (1) BGB must also be observed when checking the content :

I. Section 305 (2) and (3) and Section 308 , Section 309 of the German Civil Code ( BGB) only apply without restriction to general terms and conditions that are presented to consumers ( Section 13 of the German Civil Code).

II. For general terms and conditions towards entrepreneurs ( § 14 BGB) only § 307 BGB applies . However, Sections 308 and 309 of the German Civil Code ( BGB) are used to determine the term “unreasonable disadvantage” . They are indicative . As a result, § 308 and § 309 BGB are not directly applicable, but via § 307 Paragraph 1 BGB they also find their way to the interpretation of general terms and conditions vis-à-vis companies. In most cases, a violation of § 308 and § 309 BGB leads indirectly to a violation according to § 307 paragraph 1 BGB.

Important application example for content control of terms and conditions according to § 309 BGB:

A consumer sells an item at an internet auction house. As usual, it says at the bottom that “it is a private sale and therefore any warranty rights are excluded”. According to § 309 No. 7 a and b BGB, this exclusion is ineffective in most cases. The exclusion of warranty is normally to be seen as a general terms and conditions. Terms and conditions may not introduce any exclusion of liability for injury to life, limb, health or gross negligence. The full exclusion of liability also excludes liability for the above. The exclusion of liability is ineffective. An effective (partial) exclusion of the warranty rights is only possible if the points mentioned in § 309 No. 7 a, b and § 309 No. 8 b BGB are not excluded.

Interpretation / doubt / ambiguity rule

The BGB knows § 133 , § 157 BGB for the interpretation of declarations of intent and contracts . These are designed to determine the common will of the contractual partners and are therefore not applicable to general terms and conditions law. A validity-preserving reduction is not permitted. Rather, the so-called blue pencil test applies , according to which a violation leads to the "painting" of the parts in question. Only if understandable and sensible parts of the regulation remain, the remaining part can be maintained.

Terms and conditions are not always formulated so clearly that only one interpretation is necessary. If a general terms and conditions clause can plausibly be interpreted differently, the ambiguity rule of general terms and conditions law decides which interpretation is decisive. If a general terms and conditions clause can plausibly be interpreted differently, the interpretation desired by the user can easily be determined, namely the most favorable one for him. However, this is not the interpretation that both contracting parties want, as required by contract law. This ambiguity is at the expense of the user: The other contractual partner can choose a plausible interpretation. This is decisive. The ambiguity rule also has meaning together with the content control: one clause can be effective due to the content control according to a plausible interpretation, and according to another, likewise plausible, ineffective. The ambiguity rule allows the other contractual partner to invoke the unfavorable interpretation for the user, according to which the clause is ineffective due to the content control. Then the clause does not apply and the BGB intervenes as a substitute ( Section 305c (2) BGB).

consequences

A clause in the general terms and conditions that violates the provisions of Sections 307–309 BGB is ineffective. The rest of the contract remains effective in accordance with Section 306 (1) BGB. In accordance with Section 306 (2) of the German Civil Code (BGB), the statutory provisions apply instead of the ineffective clause. Only if adherence to the contract is exceptionally associated with unreasonable hardship for one of the contracting parties ( Section 306 (3) BGB), the contract is ineffective as a whole.

Special terms and conditions

A number of industries have uniform terms and conditions. Some of these are developed by the respective associations and used by the member companies. In the past, the general terms and conditions in a number of regulated industries (e.g. insurance companies ) required the approval of the relevant approval authority.

literature

  • Andreas Gerken: Inclusion of general terms and conditions in contracts. Department of Economics at the Hochsch. Bremen, Bremen 2002, ISBN 3-922892-65-5 .
  • Hans-Jörg Stadler: General terms and conditions in international trade. Verlag Recht und Wirtschaft, Heidelberg 2003, ISBN 3-8005-1326-9 .
  • Count v. Westphalen , AGB-Recht in 2012. (Following the corresponding previous article in NJW 31/2012, 2243). In: NJW . 31/2013, p. 2239.
  • Count v. Westphalen : Contract law and general terms and conditions clauses. (Loose-leaf commentary), 27th edition. Verlag C. H. Beck, Munich 2010, ISBN 978-3-406-50652-9 .
  • Maximilian Herberger , Michael Martinek , Helmut Rüßmann , Stephan Weth (eds.): Juris PraxisKommentar BGB incl. Online use. 7th edition. 2014, ISBN 978-3-86330-086-9 .
  • Palandt : BGB commentary. 72nd edition. Munich 2013, Verlag C. H.Beck [only an example of a number of comments on the BGB], ISBN 978-3-406-63000-2 .
  • Ulmer, Brandner, Hensen: General terms and conditions law. Commentary on §§ 305-310 BGB and UKlaG. With commented contract types, clauses and special terms and conditions. 11th edition. Verlag Otto Schmidt, Cologne 2011, ISBN 978-3-504-45109-7 .
  • Wolf, Lindacher, Pfeiffer: General terms and conditions law. Comment. 6th edition. Verlag C. H. Beck [only an example of a series of special comments on general terms and conditions law], ISBN 978-3-406-64776-5 .

Web links

Individual evidence

  1. ↑ Andreas Geroldinger: Clause and “ blue pencil test ” in the general terms and conditions jurisprudence . In: Austrian Law . Edition 2/2015. Verlag Österreich GmbH, October 2015, p. 196–211 , doi : 10.25364 / 1.2: 2015.2.2 .