Inadmissible contractual provisions between traders and consumers
A contractual provision contained in a trader's general terms and conditions or contract forms is deemed null and void if it is worded unclearly or incomprehensibly.
Moreover, the following contractual provisions between traders and consumers are not binding:
- Unfair deadlines: contractual provisions specifying an inappropriately long or short period for acceptance or rejection of a contract request by the consumer or during which the consumer is bound by the contract
- Actions treated as equivalent to a declaration: contractual provisions according to which a particular action on the part of the consumer is treated as equivalent to making/not making a declaration
- Exception: if the consumer is explicitly informed at the beginning of the specified period as to how their actions will be interpreted, and is given an appropriate period of time to make an explicit declaration.
- Non-received declarations treated as having been received: contractual provisions according to which a declaration made by the trader that is legally significant to the consumer but is not received by the latter is nonetheless treated as having been received
- Exception: cases where this concerns the effectiveness of a declaration sent to the address last provided by the consumer in cases where the consumer has not informed the trader of a change of address.
- Overly stringent form requirements: contractual provisions according to which the form requirements for a statement or declaration to be provided by the consumer to the trader or a third party go beyond written form or special access requirements
- Lack of clarity regarding fees: contractual provisions according to which a trader may demand a higher fee for its service than the one specified upon conclusion of the contract
Exception: if the contract provides that the agreed conditions for a fee change also allow for the possibility of a decrease in fees, if the conditions justifying a change in fees are set out in the contract and are objectively justifiable, and if the presence of those conditions is not dependent on the subjective assessment of the company.
- Restriction/exclusion of the right to refuse payment in the event of non-performance or unsatisfactory performance: contractual provisions according to which the right of consumers to refuse to perform their part of the contract until the return service has been performed or guaranteed is excluded or restricted in cases where the trader does not provide its service in accordance with the contract or the performance of that service is jeopardised as a result of financial difficulties that the consumer was not, and did not need to be aware of at the time of conclusion of the contract; this includes cases where the right to refuse payment is rendered conditional upon recognition by the trader that the service provided is unsatisfactory
- Restriction/exclusion of a right of retention: contractual provisions according to which a right of retention the consumer is entitled to exercise by law is excluded or restricted
- Restriction/exclusion of the right of set-off: contractual provisions according to which the right of consumers to offset their liabilities is excluded or restricted in the case of insolvency of the trader or counter claims that are legally associated with consumers' liabilities, are determined by a court or have been recognised by the trader
- Restriction/exclusion of compensation obligations: contractual provisions according to which a trader's obligation to compensate personal injury is excluded or restricted or a trader's obligation to compensate any and all damage is excluded or restricted in cases where the trader, or a person they represent, is responsible for causing the damage intentionally or due to gross negligence
- Decision on whether the services provided are in accordance with the contract: contractual provisions according to which a trader or a body or individual within its sphere of influence is authorised to decide, with binding effect for the consumer, whether the services provided by the trader to the latter correspond to the services contractually agreed upon
- Imposition of a burden of proof: contractual provisions according to which a burden of proof is imposed on consumers despite this not applying to them by law
- Excessively short period for expiry of rights: contractual provisions according to which the rights of consumers to goods taken over by the company for processing expire after an inappropriately short period of time
- Excessively high default interest: contractual provisions according to which the interest owed by the consumer if they default on payment exceeds the rate of interest applicable if payment is made in accordance with the contract by more than five percentage points per year
- Restriction/exclusion of the right to claim error or lack or loss of the basis for the transaction: contractual provisions according to which the right to claim error or the lack or loss of the basis for the transaction is excluded or restricted in advance, for example by means of an agreement stipulating that commitments made by the company do not constitute the main object of the contract or an integral component thereof
- Obligation to pay unclear or excessive recovery or collection costs: contractual provisions according to which, upon default, the consumer is obliged to pay recovery or collection costs but a separate breakdown of these costs is not provided in the contract or these costs were not necessary for the expedient recovery or collection of the debt
If a trader cannot provide evidence that the following contractual provisions were agreed upon in detail, they will not be regarded as binding:
- Termination of contract without objective justification: contractual provisions according to which a trader may terminate the contract without objective justification
- Transfer of the contract to a third party not mentioned in the contract: contractual provisions according to which a trader reserves the right to transfer its obligations or the entire contract, in discharge of its obligations, to a third party that is not named in the contract
- Unilateral amendment of services: contractual provisions according to which a trader may unilaterally amend the service to be provided or deviate from it
- Exception: if the amendment or deviation is acceptable to the consumer, for example because it is minor and objectively justified.
- Increase in remuneration upon request: contractual provisions according to which the trader may request a higher fee than originally agreed for the services to be provided within two months after conclusion of the contract
- Exclusion/restriction of compensation for damage to transferred property: contractual provisions according to which a trader's obligation to compensate damage to goods transferred to it for processing is excluded or restricted
- Exclusion/restriction of claims in relation to down payments: contractual provisions according to which consumer claims in relation to down payments are restricted or excluded
- Arbitrators: contractual provisions according to which a legal dispute between the trader and the consumer is to be settled by one or several arbitrators
Responsible for the content: Federal Ministry of Justice