In a ruling dated August 14, 2024 (case no. 102 AR 84/24 e), the Bavarian Supreme Regional Court (BayObLG) ruled that general terms and conditions (GTC) can be validly included in contracts between companies, even if they are only available online and not physically included in the contract or attached as an annex. This groundbreaking decision enables companies to use GTC with greater flexibility, which is particularly important for those that frequently enter into business contracts.
In the underlying case, a dispute arose between two companies over the quality of a delivered front door. A general contractor, the applicant, had erected the building and had the front door delivered by a subcontractor, the defendant 1. Another subcontractor, the defendant 2, was responsible for installing the door. After it was determined that the door warped and became leaky when exposed to strong sunlight, an independent evidence procedure led to an agreement between the applicant and the building owners on compensation of around 13,000 euros for the rectification of the defects and the resulting costs.
The applicant sought to recover this amount from the two subcontractors, as both were held responsible for the defects identified. Since there was no written contract and no agreement on jurisdiction had been made, the applicant requested that a competent court be determined.
The Bavarian Higher Regional Court found that the defendant's general terms and conditions (GTC) were effectively incorporated into the contract, even though they were not directly inserted into the offer letter or attached as an appendix. Instead, the offer letter clearly referred to the GTC available online and provided the Internet address where they could be accessed.
The court further explained that in business-to-business transactions, the strict rules on the inclusion of general terms and conditions that usually apply to consumer contracts do not apply. This allows companies to include general terms and conditions in contracts in a more flexible way. A simple, clear reference to the internet address where the general terms and conditions can be viewed is sufficient, provided that the reference is clearly visible to the contracting party.
Inclusion of general terms and conditions in the B2B sector: In business transactions between companies, the requirements for the inclusion of general terms and conditions (GTC) are less strict than in consumer transactions. An effective reference to an internet address where the GTC can be viewed is sufficient, as long as the business partner has the opportunity to view them.
Practical significance: It is important for companies not only to make their terms and conditions accessible, but also to clearly refer to them in contracts or offer letters. A clear and visible link to the Internet address where the terms and conditions can be accessed is an effective method for this.
Importance of Jurisdiction Agreements: The effective inclusion of general terms and conditions can also include provisions on jurisdiction. These determine which court has jurisdiction in the event of a dispute. Companies should understand the legal consequences of such agreements and ensure that they comply with the legal framework.
The ruling underlines the importance for companies to carefully handle the inclusion of general terms and conditions (GTC) in B2B transactions and to be aware of the resulting legal implications. It shows that relaxed rules apply when doing business with other companies with regard to the inclusion of GTC.
For consumers and people without prior legal knowledge, this ruling also makes it clear that special regulations exist in commercial transactions. Understanding your own rights and obligations is essential in order to avoid legal pitfalls and to operate effectively in the business world.
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