In everyday language, the word “clause” often has a negative connotation because it is associated with regulations in the small print that are disadvantageous for consumers . The civil law has adverse legal effect recognized by clauses and protects the consumer in certain cases prior to their application. These are often complex passages, difficult or even incomprehensible for the legal layperson, with sometimes considerable legal consequences . In order to protect consumers, the legislature has drawn up rules that are intended to restrict the use of clauses in a customer-friendly manner. Controversial clauses can be checked by courts by means of content control .
So-called general clauses in laws (opposite: special clause) also contain "clause" as a word component, but they are to be understood as an abstract legal norm and not a clause in the sense understood here.
According to their content, there are general clauses and special clauses . While general clauses aim to regulate general issues (such as liability clauses , limitations of liability , trade clauses), special clauses deal with detailed legal issues.
- The term "cash clause" is used in various contexts. If clauses are ineffective, the content of the contract is based on dispositive statutory law if the omission (cassation) of the ineffective clause should result in a contractual loophole. Moreover, describes a contract agreement with kassatorischer clause (forfeiture or sunset clause), after which the debtor in non-compliance with his duties his claims loses. In the case of repayment loans , a collection clause is an agreement that provides that in the event of payment arrears with individual repayment installments, the entire remaining amount is due. In the case of bills of lading , the collection clause states that if the original bill of lading is presented, the remaining copies become invalid.
- In contracts, the Clausula rebus sic stantibus assumes that the underlying business basis will be retained during the term of the contract and otherwise a contract amendment is permitted.
- The severability clause states that the rest of the contract remains valid, even if individual parts of the contract / clauses are legally ineffective or should subsequently prove to be ineffective.
- The enforcement clause is an enforceable copy by notaries in enforcement titles or court judgments and specified in terms of content in ZPO, according to which the copy is given to the respective creditor "for the purpose of enforcement".
- In connection with foreclosure, there are legal terms such as clause action, clause counterclaim , clause procedure , clause allocation procedure or clause reminder .
In §§ 305 ff. BGB clauses are understood to mean individual provisions in the general terms and conditions . General terms and conditions are not only the forms attached to a contract ( e.g. purchase contract , employment contract , rental contract , credit agreement ), but also the contractual passages contained in the actual contracts, unless they have been individually negotiated with the consumer ( (1) sentence 3 BGB ). Since nowadays such contracts are available as a form and are usually not explained to the consumer by the user, they also apply as general terms and conditions and are therefore subject to judicial review in the event of a dispute.
All provisions that are intended to regulate individual regulatory objectives provided for in Sections 308 and 309 of the German Civil Code are to be regarded as a uniform clause. are subject to judicial review of the terms and conditions and are determined through interpretation . The interpretation depends on the (objectified) recipient horizon of the average legal ignorant customer. In jurisprudence and literature , the prevailing opinion today is that a clause is ineffective if it does not withstand a content control according to §§ 305 ff. BGB. The purpose of these provisions is to protect the user's contractual partner from unreasonable clauses. This content control extends to clauses that deviate from the law or make supplementary regulations.BGB contains a non-exhaustive list of prohibited clauses with the possibility of evaluation, BGB accordingly contains forbidden clauses without the possibility of evaluation. The courts must examine whether the clauses of Section 308 of the German Civil Code (BGB) are ineffective due to inappropriate discrimination against the customer. The clauses contained in § 309 BGB, on the other hand, are always ineffective due to unreasonable discrimination. The content and regulatory content of individual terms and conditions clauses
Surprising or unclear clauses are by no means part of the contract ( transparency requirement ; (1) sentence 2 BGB). Unclear clauses are not ineffective , but are designed to be customer-friendly at the expense of the user. In the case of individually negotiated contracts, however, they are considered dissent and can endanger the entire contract ( BGB). On the other hand, clauses that meet the legal requirements are not accessible for content control.paragraph 1 and 2 BGB). It also plays an important role whether the clause is lost in the small print or whether it is particularly emphasized in the printing process. Surprising are those clauses that are objectively so unusual in terms of the external appearance of the contract and subjectively so surprising from the customer's point of view that they do not have to be reckoned with ( BGB); the clause must have a "surprise effect". Clauses must be formulated in a clear , clear and understandable manner (
Clauses in individual types of contract
Some types of contract have clauses that are typical of the contract:
- Rental contracts can contain a large number of ineffective clauses if these go beyond the framework prescribed by law or case law , such as in the case of rent bail , cosmetic repairs or animal husbandry .
- In employment contracts , the reference clause regulates the inclusion of collective bargaining rules; this global reference is permitted. The so-called transfer clause in employment contracts grants the employer the right to change the employee's place of work if necessary. This relocation clause eliminates the employee's right to a permanent place of work, because the employer is basically entitled to determine the place of work within the federal territory more precisely at its own discretion. On the other hand, they can be ineffective if the employee's element of surprise arises from the employee's justified expectations raised outside the contract by the employer. Repayment clauses secure certain operational benefits.
- Loan agreements contain a large number of clauses. A credit cancellation , by credit institutions are pronounced at the refusal of the borrower , loan collateral to order or to strengthen in the long-term overdraft of credit lines on a large scale or non-submission of loan documents as part of the credit scoring or other contractual significant documents.
Internationally, too, clauses are usually understood to mean standardized contractual provisions. The EU's “Contractual Clause Directive” of April 1993 dealt with unfair terms in consumer contracts and instructed EU member states to ensure that contracts concluded with consumers do not contain unfair terms. In Germany, it was initially transformed into German law by the General Terms and Conditions Act and subsequently as part of the modernization of the law of obligations in January 2002 by Sections 305 ff. BGB . In France , an “unfair clause” according to Art. L132-1 Paragraph 6 of the Code de la Consommation (Consumer Code ) is deemed not to have been written and is therefore ineffective. In Anglo-Saxon contract law there is, for example, the pari passu clause , positive declaration , negative declaration , material adverse change clause , default clause , cross-default clause , collective action clause or cross-reference clause . They are largely standardized in terms of content (especially in the standard contracts of the Loan Market Association ) and no longer need to be reformulated.
- Uwe Diehr and Michael Knipper (both editors): Effective and ineffective clauses in the VOB contract. Reference book for drawing up and checking contractual conditions. Vieweg 2003, 158 pages, hardcover, ISBN 3-528-02577-8 .
- Sarah Krins, The extent of the compelling character of German transport law , 2012, p. 144.
- Sarah Krins, The extent of the compelling character of German transport law , 2012, p. 187.
- BGHZ 124, 254, 256.
- cf. BGHZ 131, 55, 58 f. to extend liability to all existing and future liabilities in the case of a guarantee
- BGH NJW 1990, 576, 577
- Haimo Schack, BGB General Part , 2008, p. 112.
- BAG, judgment of April 13, 2010, Az .: 9 AZR 36/09
- BAG, judgment of August 8, 2007, Az .: 7 AZR 605/06.
- No. 22 para. 1 AGB-Sparkassen or No. 13 para. 1 and 2 ABG-Banken
- Klaus J. Hopt, Legal Obligations of Credit Institutions to Provide Credit, Leave Loans and Restructuring Companies , ZHR 143, 139, 161
- Volker Lang / Paul Assies / Stefan Werner, Modernization of the Law of Obligations in Bank Practice , 2002, p. 161
- (PDF) of April 5, 1993.
- Jean M. Gardette, The treatment of "inappropriate" clauses under the French General Terms and Conditions Act , 2005, p. 329 f.