Contract amendment by silence is back in focus. In two recent decisions (November 2024 and June 2025), the Federal Court of Justice (BGH) clarified its case law. It made it unmistakably clear that companies must obtain active consent from consumers for changes to their general terms and conditions (GTC).
In other words, simply informing customers of changed terms and conditions and then remaining silent is not permissible. What initially emerged from a dispute over bank charges ultimately affects all SaaS and online services that want to change their terms of use. In this blog post, we shed light on the background to the BGH rulings and show what startups now need to bear in mind.
Silence is Not Consent – BGH Clarifies
Back in 2021, the Federal Court of Justice ruled in the highly regarded Postbank judgment: “Silence is not consent” – at least not in the case of unilateral contract amendments to the detriment of consumers. At the time, the court overturned a clause that required customers to object within two months; otherwise, changes would be deemed to have been approved. This so-called fiction of consent was deemed incompatible with the principle of good faith.
Contractual clauses defining the silence of the contractual partner as acceptance of an offer to amend the contract deviate from fundamental principles of contract law. They also disadvantage consumers unreasonably.
BGH Reaffirms Stance in 2024 and 2025
What is new is that at the end of 2024 and in mid-2025, the Federal Court of Justice reaffirmed and clarified this line. In its ruling of November 19, 2024 (case no. XI ZR 139/23), the XI Civil Senate sent a clear signal. Even years of tacit payment of illegally charged fees does not mean that customers have agreed to contract amendments. Silence remains silence – not consent. Consumers can therefore demand the return of unjustifiably collected fees, even if they have not objected for a long time.
In June 2025, the BGH confirmed this course in a model declaratory action against Berliner Sparkasse (judgment of 03.06.2025, ref. XI ZR 45/24). It once again clarified that fictitious consent clauses are invalid vis-à-vis consumers. There is no legal basis for charges based on them.
Important: The mere continued use of a service or unconditional payment does not constitute implied consent. This applies if the price or contract change was based solely on an invalid clause. The BGH thus rejected the idea that consumers had given their tacit consent through years of inactivity.
Statute of Limitations
Incidentally, the BGH also clarified the issue of the statute of limitations in its decision of 2025. Contrary to the hopes of consumer associations, the regular limitation period of three years applies to claims for repayment. This period begins at the end of the year in which the fee was paid and shown in the statement of account, not only from the time the ineffectiveness of the clause becomes known.
Nevertheless, many bank customers can currently still reclaim fees back to 2022. For our context – the changes to the GTC in general – this limitation issue confirms that companies should not rely on consumer rights being extinguished by the passage of time if the basis for the fee was unlawful. Instead of questionable clauses, correct procedures for amending contracts are needed.
More Than Just Banks: SaaS and Online Services Affected
Even if the BGH rulings specifically concerned bank fees, their consequences apply across all sectors. This is because the legal basis is general terms and conditions law and consumer protection, not a special statutory rule only for banks. Every startup and every online service that wants to change its terms of use must now pay particular attention.
Clauses like "If you do not notify us, the new T&Cs will be deemed accepted" are invalid. This holds true regardless of whether they relate to account fees, software usage contracts, or app T&Cs. Until now, many internet services have relied on emails or in-app notifications along the lines of: “We have changed our terms of service. If you continue to use our service, we will interpret this as consent.” This approach is now a thing of the past.
Even before the new rulings, it was clear that silence in legal transactions does not generally constitute consent. However, the latest BGH rulings put the spotlight on the issue. They clarify that such fictitious consent is not valid, especially when dealing with consumers. Startups should urgently adapt their approach in order to avoid legal pitfalls.
Consequences for Providers
Why is this so important? Suppose a SaaS provider sends out amended terms of use, stating they will apply if users do not object within 4 weeks. A user remains silent and continues to use the service without ever actively saying “yes” to the new terms.
Later, the provider wants to invoke a new clause, such as a limitation of liability or a price increase from the amended terms and conditions. The provider would be in a bad position in court. The clause would most likely not have become part of the contract because the required declaration of consent from the customer was missing.
In the absence of an effective clause, silence could not be interpreted as consent. In case of doubt, the old agreement would continue to apply, or the clause would be invalid. In consumer law, this is usually to the detriment of the company.
Opt-in Instead of Sitting Out: Active Consent is Mandatory
The solution for companies is: opt-in instead of opt-out. According to the requirements of the Federal Court of Justice, consumers must give their explicit consent for amended contract terms to take effect. In practice, this means an explicit “yes” from the customer is required. This could be, for example, by clicking on a checkbox or confirming a pop-up notice about new terms and conditions. Simply sending an amendment email and interpreting silence as consent is not enough (and has never actually been enough).
Recommendations for Startups and Online Services
Startups and online services should therefore consider the following points:
- Clearly inform and obtain consent: Communicate changes to the terms of use unambiguously. Offer a simple option for active consent, such as an “I agree to the updated terms and conditions” button in the login area. The complete new terms and conditions must be brought to the user’s attention before they agree.
- Obtain verifiable consent: Ensure the consent process is documented (time, type of consent). This allows you to prove active agreement in case of a dispute.
- No more “silence as consent”: Refrain from using wording in emails or contract clauses that imply silence or mere continued use as consent. Such clauses are legally ineffective and may harm your position.
- Consider deadline and consequences: Set a reasonable deadline for customers to accept the new T&Cs. Also, communicate the consequences if they do not agree.
- The changes cannot be unilaterally enforced without consent.
- In extreme cases, you might have to consider terminating the contract or continuing it under the old conditions if an agreement cannot be reached.
- This step requires careful consideration, as you ideally do not want to lose customers. However, legally, a service may terminate the business relationship if no agreement on changed conditions is possible.
This opt-in procedure ensures that your contract amendments are legally compliant. It also ensures transparency and trust among your users, because nobody likes the feeling of being forced into unwanted conditions through passivity.
Conclusion: Changes Only With an Active “Yes” From the User
For providers of digital services, SaaS start-ups, and all companies with consumer contracts, this is the time to act: Changes to terms and conditions need the active consent of customers. The Federal Court of Justice has once again made it clear that tacit consent clauses are invalid. In case of doubt, no new contract will be concluded unless the consumer has expressly consented. Startups should see this as a wake-up call to adapt their processes.
Regardless of whether it concerns fees, usage rules, or other contractual conditions – customer silence should no longer be misunderstood as a golden blank cheque. Instead, the motto is: ask instead of imply. Proactively obtain the consent of your users. At first glance, this may seem more cumbersome than the old “fictitious consent”. However, it creates legal certainty and strengthens the customer relationship through fairness and transparency.
Ultimately, it also shows that you take current developments in consumer protection seriously, which can only improve your image. In short: Don’t be afraid of the extra click! Better one more checkbox than ending up looking old in court.
The BGH rulings of 2024/25 have clearly shown that the future belongs to opt-in solutions – in banks, in the tech industry, and everywhere else where terms and conditions are changed. So stay on the safe side and get the “yes” from your customers before you try to enforce new clauses. Because silence may sometimes be consent, but not in consumer law. Only consent makes the change effective.