Transparency principle (general terms and conditions law)

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The principle of transparency laid down in German law in Section 307 (1) sentence 2 of the German Civil Code ( BGB ) requires those who include general terms and conditions (AGB) in a contract (AGB user) to formulate them in such a way that the contractual partner's rights and obligations are clear resulting from the terms and conditions. It is one of the central regulations of the law of general terms and conditions. If the transparency principle is violated, the terms and conditions are ineffective.

Principle of transparency and content control

The principle of transparency is, in addition to the inappropriate disadvantage, one of the two standards of the general terms and conditions-legal content control within the framework of the general terms and conditions-legal clause of § 307 BGB. The yardstick for assessing whether a contractual clause is clear and understandable and therefore transparent should be whether the corresponding contractual provision can be understood by an attentive and careful participant in commercial transactions.

There are three main cases of lack of transparency in contractual clauses:

  • Unclear about the price-performance ratio
  • The user of the terms and conditions reserves the right to design the contract development and thus creates unmanageable risks for the contractual partner.
  • The user of the GTC bases his contractual relationships on an incorrect and / or opaque legal opinion.

History of § 307 paragraph 1 sentence 2 BGB

The case law of the Federal Court of Justice already knew the content of general terms and conditions based on the principle of good faith ( § 242 BGB) before the codification of the general terms and conditions law . In 1976, in order to further improve consumer protection, especially in the case of pre-formulated standard contracts with the famous "small print", the law regulating the law of general terms and conditions (AGB-Gesetz) was passed. It came into force on April 1, 1977.

The European Directive 93/13 / EEC (Clause Directive) stipulates in Art. 5 that clauses in contracts with consumers should be clear and specific. This guideline requirement was initially implemented in Germany with the existing AGB law . However, the principle of transparency was not expressly regulated in the General Terms and Conditions Act, which was in force until December 31, 2001; rather, it was adopted by the highest court rulings from the former § 3 , § 5 and § 9 General Terms and Conditions Act (today § 305c , 307 Paragraph 1 and Paragraph 2 BGB). In 2001, however, the European Court of Justice ruled in proceedings against the Netherlands that an express regulation on the transparency principle was required. In the course of the modernization of the law of obligations and the associated inclusion of the general terms and conditions law in the BGB, today's § 307 Paragraph 1 Clause 2 BGB was inserted.

See also

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  1. ↑ Helmut Heinrichs in: Palandt § 307 paragraph 320 ff.
  2. ↑ Law of 9 December 1976 (Federal Law Gazette I 1976, p. 3317)
  3. ↑ Council Directive 93/13 / EEC of April 5, 1993 on unfair terms in consumer contracts
  4. ↑ ECJ , judgment of May 10, 2001 - Case C-144/99 (Commission / Netherlands), Slg. I. 2001, 3541 = NJW 2001, 2244

literature