General terms and conditions (GTC) are a plethora of pre-formulated contractual conditions. These are usually of little interest to the customer and in online shops they are quickly clicked away as “read and accepted”.
In contrast, this topic raises many questions for an entrepreneur: Do I need GTCs? If so, can I copy them from another site? And what do the terms and conditions actually have to contain? This article is intended to provide some clarification.
1. Do I need general terms and conditions as a company?
From a purely legal point of view, there is no regulation that obliges a company to have general terms and conditions. This answer may come as a surprise. The question is what applies without GTCs. Quite simple: statutory law, e.g. from the BGB or HGB. All right, you might think, then you can save yourself all the trouble.
But why do so many companies have general terms and conditions? Because they can use them to shape something in their favour. A clause regulating the retention of title to the delivered goods can be advantageous. Then the entrepreneur has a stronger claim to reclaim his goods in case of non-payment. Or an exclusion of liability for slight negligence can pay off in the end. In this sense, general terms and conditions are a safeguard for the worst-case scenario. And that is exactly why people conclude contracts in other areas. No one would think of buying a car without a contract.
2. Can I take over the GTC from another webshop?
It is not uncommon for clients to have copied their existing GTC “from somewhere”. Of course, this saves costs and is admittedly convenient. On the other hand, you risk a warning letter. And that can quickly become expensive with lawyer’s fees and court costs.
Using someone else’s general terms and conditions can infringe copyrights. This does not apply to ordinary standard formulations. But who, as a layman, can judge whether a formulation is standard or the result of particularly creative work?
Another problem is the illegality of third-party GTCs. If a clause is illegal, it can be warned off regardless of copyright. For example, numerous GTC contain severability clauses (“Should one of these provisions be invalid, this shall not affect the validity of the remaining provisions of these GTC”). However, these clauses are not permitted in general terms and conditions with consumers.
After all, copied GTCs can be easily found via search engines nowadays.
3. How are GTCs included in contracts?
The consumer must have the opportunity to read the GTC before concluding the contract, i.e. before clicking on the “buy” button. The trader, in turn, must clearly refer to the general terms and conditions during the ordering process. The tick solution has become established here, but it is not a must. If the customer orders with knowledge of the general terms and conditions, he has agreed to their validity.
After the conclusion of the contract, the trader is obliged to make the GTC available to the consumer “on a durable medium”. Strictly speaking, this is not part of the effective inclusion of the GTC. Nevertheless, it should be mentioned here. In the case of e-commerce, it is sufficient to send the GTC by e-mail.
4. What must be included in the GTC?
It depends on the business model what has to be included in the GTC of a shop. There are standard terms and conditions that fit many shops. These more or less cover the areas of contract conclusion, payment, delivery/transfer of risk, warranty and liability. In addition, there is a reference to the consumer arbitration board and the right of withdrawal.
However, if something else is offered (e.g. services or production according to customer wishes), the design is more individual and thus more complex. Prefabricated standard GTCs rarely fit here.
5. What may not be included in general terms and conditions?
Sections 305 et seq. of the German Civil Code (Bürgerliches Gesetzbuch) regulate what may not be included in general terms and conditions. The law distinguishes between ineffectiveness and non-contractual elements, but this is of no further interest.
The fact is, there is a plethora of “no-go’s” that fill entire textbooks. Here is just a small selection:
Example 1:
“Complaints about defects in the delivered goods must be reported immediately, but no later than one week after receipt of the consignment.”
Ineffective according to § 307 para. 1 BGB vis-à-vis consumers, as the warranty period is two years. Defects can be reported within this period.
Example 2:
“The notice of termination must be in writing to be effective.”
Also ineffective according to § 307 para. 1 BGB.
Written form = printout on paper + handwritten signature.
Text form = legible declaration on a durable data medium (e-mail, SMS or other electronic message). Termination in text form is permissible in GTCs.
Example 3:
“Any provisions deviating from our GTC must be in writing to be effective.”
Such a written form requirement is invalid vis-à-vis consumers pursuant to § 305b BGB. According to this, individual contractual agreements take precedence over general terms and conditions. These must also be able to be agreed orally, which is inadmissibly excluded by the clause.
Example 4:
“These General Terms and Conditions are subject to German law.”
If consumers can order from abroad, this clause is invalid. This is because it automatically excludes mandatory foreign law, which is impermissible.
Example 5:
“We grant a 24-month guarantee on this product!”
We hope that the user of this clause was at least aware of the difference between guarantee and warranty.
The warranty is prescribed by law and is therefore obligatory. The warranty, on the other hand, is given voluntarily by the dealer, who is free to define the terms. The guarantee applies in addition to the warranty.
The guarantee declaration must make it clear that it does not restrict the right of warranty. This is not clear from the clause used here, so that it is incomplete and therefore inadmissible.
Example 6:
“Vouchers are valid for one year from the date of issue. After that they can no longer be used.”
The mandatory limitation period for vouchers is three years, so this provision is invalid.
Example 7:
“If an item is not available, we will send you a replacement item of equal quality and price.“
This is a violation of section 308 no. 4 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), as the customer cannot usually be reasonably expected to accept a change from the point of view of functionality/usability/design.
Example 8:
“Return only in original packaging.”
This clause is inadmissible according to settled case law, as it excessively restricts the consumer’s statutory right of withdrawal.
6. What happens if a regulation violates applicable law?
If a regulation violates applicable law, it does not become part of the contract concluded with the customer. Now a rogue could get the idea of simply putting everything into his GTC that seems advantageous to him. In case of doubt, it would not apply.
However, this approach ignores the danger of warning letters. This threat comes not only from competitors, but also from consumer protection agencies and the Consumer Protection Association against Unfair Competition. The Consumer Protection Association in particular is very active and feared by some webshop operators. So it’s no small feat.
On the other hand, you should not underestimate your customers, who might take a look at the terms and conditions and comment on the corresponding clauses on social media channels.
