Law on gerneral terms and conditions (GTC), horak Attorneys at Law, Germany
General terms and conditions legislations are preformulated terms that you are pretending from your contractual partner. The contractual conditions are usually discussed and negotiated every time we are stipulating a contract. Terms and conditions law is considered relative strict in Germany; the strict and protective regulations that concerned every company, are not always immediate, instead are mainly indirect.
The general terms can be modified from you, as professional user of the conditions, within the statutory framework of the legal requirements of the intrapreneurial circumstances; they can also always be deployed (from a retail business for example) in the agreement closure.
Terms and conditions hugely facilitate the commercial intercourse of a company.
Terms and Conditions, effectiveness and reliability.
To make sure that your terms and conditions are actually going to be effective, the stipulated conditions must be included in both the respective agreements.
The user must explicitly refer to the business partner within the end of the contract. They must be clearly and unambiguously included in the contract letter, the offer letter or in a purchase order.
If the service exchange has not been officially written, as it happens for example in car wash facilities, restaurants, passenger transportations, the terms and conditions must be clearly visible at the place of the conclusion of the agreement.
The contractual partner must have the opportunity to take note of the content of the Terms and Conditions agreement and to declare his consent. The declaration of consents can be made by concluding and signing the contract.
In business transactions with companies:
the contract partner does not have to be given the opportunity to obtain knowledge of the terms and conditions
In order to avoid misunderstandings and, if possible, legal disputes, this should be included in the offer letter.
In the case of a current business relationship, the customer must explicitly object to the General Terms and Conditions, if these were taken as a basis for a previous transaction. This is also applied to general terms and conditions, which are customarily always taken as a basis to work on (in trucking business, banking business, insurance matters).
GTC in the online trade
In addition to the legal requirements of 305 ff. BGB, other regulations must be observed. The perusal of the GTC needs to be confirmed, for example. The terms and conditions must be copied, downloaded, or printed.
The customer's instruction concerning the Distance Selling Act regulated by the right of return and revocation can be included in the terms and conditions. The instruction, however, must be visually highlighted.
Formulation of the General Conditions of Business (GTC):
simple formulation suitable for laypeople can be advantageous, when used against consumers;
- clear design, comprehensible structure;
- "eye-catching" positioning in the contract, written order or order letter and in any case, should be included in the contract before conclusion of the agreement;
- compliance with the statutory provisions of the GTC-Law § 305 BGB (German Civil Code), in particular the listed and not allowed clauses or the limited and allowed clauses needs to be considered;
Consideration of the different regulations for consumer and entrepreneur customers.
No mere "copying" of third-party terms: legal contradictions (all the related rules are ineffective), other terms with different interpretations (in case of doubt, is invalidated by the user), etc.
We also deal with the following topics in GTC law:
- General Terms of Business
- GTC rights
- GTC commentary
- Sample GTC
- Requirement for transparency
- GTC verification
- Assembly of GTC