Introduction

In Germany, general terms and conditions (GTC) are a widely used means for companies to agree standardized contractual terms with their customers or business partners. However, the law governing general terms and conditions in Germany is strictly regulated to ensure that the rights of contractual partners, especially consumers, are protected. A key element of this regulation is the clause prohibitions. In this article, we will take an in-depth look at the prohibitions on clauses in the law governing general terms and conditions in Germany.

What are clause prohibitions?

Clause prohibitions are legal provisions that declare certain types of contractual clauses in general terms and conditions to be inadmissible. These prohibitions are intended to prevent one party, usually the user of the GTCs, from disadvantaging its contractual partners through unfair or unbalanced clauses.

Legal basis

The legal basis for clause prohibitions in GTC law in Germany is found in the German Civil Code (BGB). In particular, §§ 305-310 BGB are relevant. The general requirements for the validity of GTCs as well as special clause prohibitions are regulated here.

Types of clause prohibitions

General clause (§ 307 BGB)

Pursuant to Section 307 of the German Civil Code, provisions in general terms and conditions are invalid if they unreasonably disadvantage the contractual partner of the user contrary to the principles of good faith.

Clause prohibitions with evaluation option (§ 308 BGB)

§ Section 308 of the German Civil Code contains a list of clauses that are generally considered unreasonable, but may be permissible under certain circumstances. Examples are advance payments, contractual penalties or unilateral changes in performance.

Prohibition of clauses without possibility of evaluation (§ 309 BGB)

§ Section 309 of the German Civil Code (BGB) contains a list of clauses that are generally invalid without the need for further consideration. Examples include exclusions of liability, restrictions on termination or limitations on warranty rights.

Control of GTC

The control of general terms and conditions and the enforcement of clause prohibitions is usually carried out by courts. In addition, consumer protection associations and competition centers are active and can take action against companies that use unlawful GTCs.

Conclusion

Clause prohibitions in GTC law are an important instrument for protecting contractual partners, especially consumers, from unfair contractual terms. Companies operating in Germany should carefully review their GTCs to ensure that they comply with legal requirements.