OLG Düsseldorf: In the B2C sector, no inclusion of general terms and conditions for offline orders and mere reference to website

In its ruling of 25.04.2024, the Higher Regional Court of Düsseldorf decided that a company’s General Terms and Conditions (GTC) do not become part of the contract for offline orders by consumers if there is only a reference to the company’s website. This decision has far-reaching implications for the drafting of contracts between companies and consumers. It underlines the importance of informing consumers comprehensively about the applicable general terms and conditions. The ruling makes it clear that a mere reference to the website is not sufficient to effectively include the GTC in the contract. Instead, companies must ensure that consumers actually have the opportunity to take note of the GTC. This can be done, for example, by sending the T&Cs by email or post. The ruling thus creates more transparency and security for consumers when concluding contracts.

Facts

In this case, a consumer had concluded a contract with a company by telephone. During the telephone call, the company employee pointed out that the GTCs could be viewed on the company’s website. The consumer neither received a copy of the GTC nor did he confirm that he had taken note of them. This situation is typical of many distance selling contracts where there is no direct contact between the company and the consumer. In such situations in particular, it is important that consumers have the opportunity to obtain comprehensive information about their rights and obligations. This includes, in particular, taking note of the general terms and conditions, which often contain important provisions on the content of the contract, liability and warranty rights. Without an effective opportunity to read the GTC, there is a risk that consumers will conclude contracts without being aware of the exact terms and conditions.

Decision of the OLG Düsseldorf

The Higher Regional Court of Düsseldorf ruled that the company’s GTC were not effectively included in the contract. According to Section 305 Para. 2 No. 2 BGB, the user must provide the opportunity to reasonably take note of the GTC when concluding the contract outside its business premises. A mere reference to the website is not sufficient for this. The court based its decision on the need to protect consumers. In contrast to entrepreneurs, consumers are often not experienced in business and therefore require special support in order to be able to exercise their rights. This also includes the opportunity to obtain comprehensive information about the terms and conditions of the contract. A mere reference to the website is not sufficient to meet this requirement, as it cannot be assumed that all consumers have internet access or the possibility to access the terms and conditions online.the court emphasized that strict requirements must be placed on the inclusion of terms and conditions for consumers. The trader must ensure that the consumer actually had the opportunity to take note of the GTC. This could be done, for example, by sending the GTCs by email or post. An explicit confirmation from the consumer that they have received and read the T&Cs could also serve as proof. The decisive factor is that the consumer has a real opportunity to deal with the terms and conditions of the contract. This is the only way to ensure that the consumer can make an informed decision on the conclusion of the contract. The ruling thus strengthens the position of consumers and creates clear guidelines for companies that want to effectively include their general terms and conditions in contracts.

Differences to the B2B sector

In contrast, significantly lower requirements are placed on the inclusion of GTC in business-to-business transactions (B2B). In this case, a reference to the validity of the GTC with a link to the website may be sufficient. This is due to the fact that contracts between entrepreneurs are assumed to be based on greater business experience and a higher degree of professionalism. Entrepreneurs are used to dealing with GTCs and know what to look out for. As a rule, they also have the technical means to access and check the GTC online. In addition, contract negotiations in the B2B sector are often more individualized, meaning that GTCs play a lesser role than in standardized consumer contracts. Nevertheless, the GTCs should also be formulated clearly and comprehensibly in business transactions and the opportunity to take note of them should be given. the reason for this distinction is that contracts between entrepreneurs are assumed to be negotiated “at eye level”. In contrast to consumers, entrepreneurs are experienced in business and therefore require less protection. As a rule, they can protect their interests themselves and are not equally reliant on statutory protective provisions. Nevertheless, the principle of good faith also applies in the B2B sector. Surprising or unusual clauses in general terms and conditions can also be invalid between entrepreneurs if they unreasonably disadvantage the contractual partner. Overall, however, the requirements for the inclusion of GTCs in the B2B sector are significantly lower than in relation to consumers. This takes into account the different protection requirements and the greater contractual freedom in business transactions.

Practical relevance and examples

The decision of the Higher Regional Court of Düsseldorf has far-reaching implications for a wide range of sectors in which contracts are concluded outside of business premises. In addition to traditional online stores and distance selling contracts, this also affects many service companies that often conclude their contracts directly at the customer’s premises. One example of this is tradespeople who carry out repairs or installations on the customer’s premises. Here too, the GTCs must be effectively included if they are to form part of the contract. A mere reference to the craftsman’s website, whether verbally or on the invoice or order confirmation, is not sufficient according to current case law. Instead, the GTC must be provided to the customer in text form, for example by handing out a copy or sending it by email. The same applies to other service providers such as IT technicians, cleaning companies or gardening firms, who also frequently provide their services on the customer’s premises. They too must ensure that their GTC are effectively included in the contract by providing the customer with an opportunity to take note of them in text form. Another example is contracts concluded at trade fairs or exhibitions. Here, it is not sufficient to display the GTC at the trade fair stand or refer to them on the registration form. Instead, the GTC must be actively provided to the customer, for example by handing out a copy or sending it by email after the trade fair. The effective inclusion of GTCs is also an important issue in other sectors such as the insurance industry or in contracts for the supply of energy. Here, contracts are often concluded on the telephone or at the front door, where the GTCs must also be made available in a proper manner. A reference on the policy or the contract confirmation is not sufficient here either. Companies should therefore critically review their sales processes and ensure that they meet the legal requirements for the inclusion of GTCs in all sales channels. Otherwise, they run the risk that important contractual clauses are invalid and cannot be enforced in the event of a dispute.

Conclusion

The ruling of the Higher Regional Court of Düsseldorf shows that companies must exercise particular care when concluding contracts with consumers outside their business premises if they wish to effectively include their general terms and conditions. A mere reference to their own website does not meet the strict requirements of Section 305 (2) No. 2 BGB. Instead, they must ensure that the consumer actually had the opportunity to take note of the GTC. This can be done by sending the GTC by email or post. An explicit confirmation from the consumer that they have received and read the T&Cs can also serve as proof. Companies should adapt their processes accordingly in order to create legal certainty and avoid subsequent disputes. Consumers, on the other hand, can rest assured that they are not bound by terms and conditions that have not been properly provided to them when ordering offline, whereas the hurdles are much lower in the B2B sector. As a rule, simply providing a link to the GTC is sufficient to effectively incorporate them into the contract. Nevertheless, entrepreneurs should make sure that the GTC are formulated clearly and comprehensibly and do not contain any surprising clauses. The principle of good faith also applies in commercial business transactions. Overall, the ruling by the Higher Regional Court of Düsseldorf shows that the inclusion of GTCs is subject to different requirements depending on the contractual partner. Companies must adapt their processes accordingly and take the protection needs of their customers into account. This is the only way they can conclude legally compliant contracts and remain successful on the market in the long term.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.