Special

Term “Special” in the legal context

The term Special is not a legally defined term in the German legal system, but it is used in various areas of law. In legal contexts, “Special” often describes a particular or deviating regulation, a specific contractual clause, a special right, or an exceptional circumstance. The exact meaning and legal effects always depend on the respective field of application. Below, the most important legal aspects are explained comprehensively.

Use and meaning of “Special” in law

General use

In legal language, “Special” (German: “besonders” or “Sonder-“) stands for deviating or supplementary regulations compared to the standard case. This may take the form of special conditions, specific contractual agreements, exceptional rights, or even deviating statutory provisions.

Role in contractual relationships

The term “Special” is frequently encountered in contract law, particularly as a supplementary agreement or special contractual clause (“Special Clause”). Such regulations are regularly used to address the individual needs of the contracting parties.

Examples of special clauses:

Special payment arrangement: Deviating payment modalities are subject to special conditions as “Special Payment Terms,” for example in international commercial law.
Special Conditions: Additional conditions that are often governed in purchasing and delivery terms and are individually negotiated.
Special termination rights: Individually agreed options for early contract termination, which go beyond the statutory provisions.

The effectiveness of such special conditions generally requires that they are expressly agreed and accepted by both parties. The regulations on contractual freedom under §§ 311 ff. BGB generally allow the parties to make such deviating agreements unless statutory prohibitions or immoral content (§ 134, § 138 BGB) oppose them.

Special provisions (“Special Provisions”) in law

Distinction from general clauses

Laws regularly contain general clauses, which lay down a fundamental rule. In contrast, “Special Provisions” constitute an exception or a more specific regulation, which applies in relation to the general provision. This principle is known as “lex specialis derogat legi generali” (the specific law overrides the general law) and forms an important principle of interpretation in German law.

Example:

In criminal law, a special norm applicable to a particular set of facts may supersede the general regulation (see § 52 para. 2 StGB regarding concurrence of offenses).

Implementation in administrative law

Numerous “Special Provisions” can also be found in administrative law, which provide deviating or supplementary regulations for certain groups of people, regions, or situations.

International legal relations

“Special” in private international law

In the international context, “Special” regularly appears as a term for special rules or exceptions, for example in international agreements.

Special Drawing Rights (SDR): In international law and banking, “Special Drawing Rights” (SDR) are an artificial currency unit of the International Monetary Fund (IMF), which can play a role in international treaties.
Special Agreements: Interstate agreements that may regulate special rights and obligations of individual contracting parties within international treaties.

Special provisions through individual agreements

Effectiveness and limits under terms and conditions law

Special provisions are often made as individual agreements. In the context of the General Terms and Conditions (AGB), the transparency and effectiveness of these “Special” provisions are crucial.

Test criterion: According to § 305c BGB, surprising and ambiguous clauses are invalid. A clear and unambiguous formulation is required for the enforceability of “Special Conditions.”
Negotiation requirement: A “Special” clause may not, in case of doubt, undermine the statutory minimum protection and must be individually negotiated between the parties in order to avoid the content control under § 307 BGB.

Special in labor law and the public sector

Special agreements in employment contracts

Special arrangements frequently exist in labor law, such as:

Special allowances
Special leave provisions
Deviating working time models

The effectiveness of such provisions is determined in particular by the protective regulations of labor law, such as the requirements of the Part-Time and Fixed-Term Employment Act or the Federal Leave Act. Collective bargaining and company agreements may also not be circumvented to the detriment of employees by “Special” provisions.

Liability aspects of “Special” provisions

Effects on liability and responsibility

Special rules may establish different standards of liability in the event of damage. In the context of a contract, for example, specific liability limitations or no-fault guarantees can be structured as a “Special Condition.” However, these modifications are subject to strict review under the provisions of the German Civil Code, especially §§ 276, 307 BGB as well as relevant special laws, such as the Product Liability Act.

Significance in special areas of law

In banking and capital markets law

In banking, “Special” often refers to investment products or credit agreements characterized by special conditions or structuring features (e.g., “Special Purpose Vehicle”).

In transportation law

“Special Freight” or “Special Cargo” describe goods that are subject to particular legal requirements, for example due to their dangerous or extraordinary nature. Separate regulations exist in transportation law for this, such as the ADR regulations for the transport of dangerous goods.

Summary

The term Special takes on various meanings in German law and refers to special, individual, or deviating regulations that may occur in both national and international legal relationships. The structure and effectiveness of such regulations always depend on the context and are subject to the respective legal requirements. The legal examination of “Special” provisions always requires a careful interpretation, taking into account contractual freedom, the primacy of law, and mandatory protective regulations.

Frequently Asked Questions

What legal requirements must be observed when creating a Special in marketing?

When planning and implementing a Special in marketing, numerous legal requirements must be observed. Initially, the Act against Unfair Competition (UWG) is decisive, which in particular prohibits misleading or aggressive advertising measures as well as comparative advertising. Discounts and rebates must be communicated transparently and clearly so that there is no deception regarding the actual benefit. In addition, the specific rules of the Price Indication Ordinance must be complied with, for example by correctly indicating final prices including all taxes and any additional costs. If personal data is collected as part of a Special, the requirements of the General Data Protection Regulation (GDPR) must also be strictly observed. Finally, in the case of sweepstakes or prize draws, gambling and lottery laws are relevant, particularly regarding the terms of participation, transparency, and fairness.

What information obligations do providers have when marketing Specials?

Providers of Specials must observe comprehensive information obligations. These arise in particular from the German Civil Code (BGB) as well as the UWG and relate both to the exact description of the offer and the identical or deviating terms compared to the regular offer. Customers must be informed about the duration, participation conditions, restrictions, right of withdrawal, contractual commitment, and the end of the Special. For digital content or services, special information requirements under the Telemedia Act (TMG) and E-Commerce Directive apply, which include, among other things, the imprint and privacy policy.

To what extent do special consumer protection regulations apply to Specials?

All applicable consumer protection regulations apply to Specials. Of particular importance are the right of withdrawal for consumers in distance contracts, the requirement for clarity and comprehensibility of the offer conditions, and protection against hidden costs or subscription traps. The design of the advertisement must enable consumers to recognize the exact offer and restrictions, such as quantity or time limits, at first glance. In addition, § 312a BGB requires explicit information about base prices and any existing contract terms.

What rights and obligations arise for customers when concluding a Special?

By concluding a Special, customers enter into the same rights and obligations as with regular contracts, provided there are no differing, transparently communicated terms. These include the right to the delivery of the specific service, warranty claims in the event of defects, and, if applicable, the statutory right of withdrawal. Contract terms that disadvantage the customer or contain surprising clauses are regularly invalid under §§ 305 ff. BGB. Special features of the Special, such as additional services or exclusive discounts, must be clearly agreed and documented.

What regulations apply to advertising and labeling Specials?

Advertising measures for Specials are subject to strict legal requirements. In particular, the UWG stipulates that offers must not be misleading, i.e., Specials must provide actual advantages and must not merely serve as bait offers. Labeling obligations require, among other things, the indication of prices, durations, and important conditions. Advertisements concerning discount amounts, price jumps, or exclusive benefits must be formulated so that an average consumer can correctly understand them. Infringements of labeling obligations may result in warnings and cease-and-desist claims.

What additional aspects must be observed when conducting Specials in different EU countries?

Anyone offering Specials in several European countries must observe the specifics of each national legal system – particularly regarding price advertising, data protection, and consumer protection. While EU directives on consumer protection and e-commerce set minimum standards, many countries have further-reaching regulations, e.g., on pricing or advertising restrictions for certain product groups. Furthermore, for online Specials, it must be checked whether the requirements for multilingualism, country-specific information, and country-specific cancellation rights are met. Legal violations may result not only in sanctions in the country of origin but also in the country of distribution.

What are the consequences of violating legal requirements in connection with Specials?

Violations of legal requirements when offering Specials can have far-reaching consequences. These include in particular warnings from competitors or consumer associations, interim injunctions for cessation, as well as fines by supervisory authorities, e.g., for data protection violations. In particularly serious cases, such as concealed or illegal special offers, criminal prosecution is not excluded. Additionally, aggrieved customers may assert civil claims – for example, for damages or reimbursement. Compliance with the relevant legal requirements is therefore imperative.