Conditions for applicability of general terms of business
General terms of business are pre-formulated contractual conditions for a multitude of contracts.
In order for general terms of business to be applicable, they must meet a number of conditions.
- Inclusion: general terms of business only apply if they are agreed upon between the contractual partners. The agreement on the applicability of the general terms of business may be made explicitly or tacitly. For tacit agreement to general terms of business to be valid, it must be clear to the customer that the trader only wants to conclude a contract on its general terms of business, i.e. the company must clearly refer to its general terms of business. Moreover, general terms of business only become an integral part of the contract if the customer has had the opportunity to familiarise themselves with the content of the clauses. It is not sufficient to refer to the general terms of business after conclusion of a contract (e.g. on invoices or delivery notes).
- Validity: unusual standard terms do not form an integral part of the contract if they disadvantage the other party and the latter should not have had to expect them under the circumstances, especially in light of the superficial appearance of the document. In order for such provisions to apply, the contractual partner must have specifically drawn the other party's attention to them.
- Content: a contractual provision contained in general terms of business that does not make clear one of the party's ancillary performance duties is void if, in consideration of all the circumstances of the case, it grossly disadvantages one party. In the case of transactions between traders and consumers, the Austrian Consumer Protection Act must also be adhered to. The Consumer Protection Act includes a list of all inadmissible contractual terms. Information on the subject of Inadmissible contractual provisions between traders and consumers can also be found at USP.gv.at. If such inadmissible contractual provisions are contained in the general terms and conditions, they are not binding on consumers.
responsible for content: Federal Ministry of Justice