General terms and conditions (GTC) affect everyone: whether commercial enterprises, which try to make their respective GTC the basis of the business relationship in their business dealings with each other, or private individuals, who are confronted with GTC in every situation in life – for example when boarding public transport, shopping on eBay or amazon or even when entering a department store. The importance of general terms and conditions is therefore immense.

With this in mind, I would like to try to provide a brief overview of this extremely important topic in this article:

What are general terms and conditions?

Sections 305 et seq. of the German Civil Code (BGB) contain regulations on general terms and conditions:

In detail:

Why General Terms and Conditions?

AGB are mainly used for the following reasons:

• Simplification of the business process (e.g. reduction of the time required to negotiate the contract)
• GTC create uniform and detailed regulations for legal relationships in mass contracts (simplification of legal transactions)
• make it possible to further develop inappropriate laws through new regulations or to concretize undefined legal terms (e.g. if the law states a “reasonable” period, this can be precisely defined in the GTC)
• Often even indispensable if there are no statutory regulations for the type of contract
• Strengthen your own legal position in relation to the respective contractual partner

Inclusion of general terms and conditions

In order to be effective at all, general terms and conditions must be effectively included in a contractual relationship:

Limits of admissibility (content control) of general terms and conditions

The user cannot make unlimited provisions (in his favor) in the GTC. The law provides for very specific prohibitions of regulation in this regard, particularly when used in relation to consumers. However, T&Cs between entrepreneurs are also subject to a so-called content review, in particular the prohibition of unreasonable disadvantage to the contractual partner also applies here. The following chart provides an overview:

Accordingly, the following principles in particular apply to the limits of the admissibility of GTC:

§ Section 307 I sentence 2 BGB Transparency requirement

= According to this, an unreasonable disadvantage to the customer can also result from the fact that a GTC clause is not clear and comprehensible

§ 305 c BGB surprising clauses

= GTC clauses are not part of the contract if they are “so unusual that the user’s contractual partner need not expect them”

§ 305 b BGB individual contractual agreements take precedence over the GTC

= Individual agreements between the parties shall always take precedence. GTCs that conflict with such individual agreements have no effect.