Securely incorporate T&Cs into the contract
General terms and conditions, abbreviated as T&Cs, are pre-formulated contractual conditions that one party, usually a company, uses for a multitude of contracts. This is intended to standardize and simplify business processes. Instead of negotiating each contract individually, the T&Cs become part of the contract. For the T&Cs to be legally binding and effective, certain legal prerequisites must be met.
General terms and conditions (T&Cs) are an integral part of most contracts, especially in business relationships. Important aspects such as delivery conditions, payment terms, warranty, or limitation of liability can be part of the T&Cs. It is always important that the T&Cs do not unreasonably disadvantage any party. If so, the corresponding T&C clauses may be invalid, according to the law firm MTR Legal Rechtsanwälte, which advises on, among other things, commercial law and contract law.
Incorporation of T&Cs into a contract
For T&Cs to become an effective part of the contract, they must be made known to the contractual partner at the time of contract conclusion. This typically happens through notices like “Our general terms and conditions apply” with the possibility to view them. Posting, enclosures, or a link to a website can be options for access. The contractual partner must also agree to the applicability of the T&Cs. In business transactions between companies (B2B), slightly less stringent requirements apply, but a clear agreement is still necessary here.
So-called surprising clauses must be observed: According to § 305c BGB, T&C clauses that are unexpectedly included in the contract, without the other party having to anticipate them (e.g., through hidden or unusual clauses), are considered not included.
Unreasonable disadvantage through T&C clause
A central point with T&Cs is the content control. Not every provision that a company includes in its T&Cs is legally permissible. According to § 307 BGB, a T&C clause is invalid if it unfairly disadvantages the contractual partner. This is the case if the clause does not align with the essential legal concepts or restricts essential rights and obligations of the contractual partner without an objective justification.
According to § 308 BGB, clauses that require closer consideration can also be invalid. These may include clauses granting the user an unreasonably long right to withdraw, providing an unreasonably short period for asserting claims, or assuming fictitious consent in the event of customer silence. Whether such a clause is valid depends on the individual case, particularly on the type of contract and the interests of both parties.
Generally, clauses that provide for a complete exclusion of liability for gross negligence, shorten the statute of limitations for defects in newly manufactured products to less than a year, or exclude warranty altogether are impermissible. § 309 BGB regulates which clauses are not permissible under any circumstances.
Legal consequences of invalid T&C clauses
If a clause is deemed invalid due to a violation of §§ 307 to 309 BGB, it is void – meaning it has no effect. However, the contract remains valid as long as it can exist without the invalid clause. The statutory regulation then replaces the invalid clause. It is not allowed to simply replace the invalid clause with a similar, only slightly weakened provision.
Consequences for impermissible T&C clauses
Users of impermissible T&C clauses risk not only their invalidity but also competitive legal consequences. Consumer protection agencies, competition associations, and competitors can admonish companies using impermissible T&Cs. This may result in injunctions and financial claims.
In principle, T&Cs are a useful tool in business transactions. However, they are not to be used to unilaterally undermine the rights of contractual partners. Legally prohibited or unreasonably disadvantaging clauses are void and can bring legal and economic disadvantages for companies. Transparency, comprehensibility, and fairness should always be the benchmark in designing T&Cs.
Regularly reviewing T&Cs for their legal security is therefore advisable. This ensures that new legal regulations are appropriately considered.
MTR Legal Rechtsanwälte advises in commercial law und contract law.
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