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GTCs are not invalid solely because of their length!

There are two types of legal texts that almost no one reads, but they can have enormous legal effects. Terms and conditions and privacy policy.

It is often criticized that general terms and conditions are much too long for a normal person, let alone a legally uneducated person, to read or understand.

In the dispute over the legality of PayPal’s General Terms and Conditions, however, the Federation of German Consumer Organizations also lost in the second instance before the 6th Civil Senate of the Cologne Higher Regional Court. The vzbv had applied to prohibit the payment service provider in Germany from using its – in the meantime slightly amended and shortened – general terms and conditions vis-à-vis consumers.

The Federation of German Consumer Organizations (Verbraucherzentrale Bundesverband) had claimed that the defendant’s GTCs were incomprehensible in their entirety and considerably too long. It takes an average reader about 80 minutes to read, he said. It was therefore unreasonable to expect consumers to obtain knowledge of the content of the regulations.

The 6th Civil Senate of the Cologne Higher Regional Court, however, dismissed the appeal and upheld the judgment of the Cologne Regional Court dismissing the action. In its reasoning, the Senate essentially stated that it may constitute a violation of the so-called transparency requirement if the general terms and conditions exceed a reasonable scope in relation to the significance of the transaction. However, it had not been shown that the scope of the defendant’s GTC was unreasonable.

In this respect, the considerable number of 83 pages in printed form alone could not be taken as a basis. Rather, it had to be taken into account that the GTC enabled the processing of a payment between five different persons. In addition to the payer, the payee and PayPal, banks and credit card companies may also be involved in a payment transaction. Moreover, the consumer could not only be in the role of the payer, but also – for example in the case of refunds – in the role of the payee.

The reference to the evaluation by means of an “intelligibility index” was not sufficiently substantiated. This is because the question of whether general terms and conditions are unlawful in their entirety depends on numerous factors that cannot be reflected in the context of a blanket index. For example, the use of foreign words could also be permissible if they are sufficiently explained. Insofar as the vzbv had named individual clauses which in its view were superfluous, this was not sufficient to prohibit the General Terms and Conditions in their entirety on the grounds that reading them was unreasonable. The designation of a few clauses in the context of the overall work was not sufficient for this purpose.

 

Marian Härtel

Marian Härtel

Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.

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