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General terms and conditions are only helpful if they are enforceable.

Quelle: FHNW, Institut für Industrial Design, 2016

GTC are pre-formulated contractual provisions for a large number of contracts which are not negotiated in individual cases. Individual contractual conditions always take precedence over the GTC.

For GTC, as for all other contractual provisions, freedom of contract applies. If the contracting parties agree on the contractual modalities including the GTC, they are basically free to choose the content.

In the case of GTC, special attention must be paid to ensuring that they become part of the contract in the first place. The contractual partner accepting the GTC must be informed of the GTC before the conclusion of the contract or it must otherwise be clear that the GTC are part of the contract.

Since GTCs are usually not read, case law and legislators have developed rules which the GTCs must comply with:

Unusuality rule: If the GTC are not read when the contract is concluded, this is referred to as a global assumption. If a contracting party accepts the GTC by means of global acceptance, unusual clauses do not apply. Unusual clauses are clauses that are not part of the contract and clauses that the agreeing party did not expect and should not have expected.

Ambiguity rule: If the meaning of a GTC clause cannot be determined by interpretation, the ambiguity rule applies. According to this rule, the unclear clause is interpreted to the disadvantage of the author.

Content control: According to Art. 8 UCA, stricter rules apply to GTC in B2C contracts than to other contracts. The courts are empowered to carry out a content review. This means that a court can examine whether the GTCs put the consumer at an excessive disadvantage.

General terms and conditions can greatly simplify everyday business life. When drafting them, a lot of things have to be taken into account, otherwise there may be surprises.

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