General trading conditions (shortened "„AGB "“) are all for a multiplicity of contracts preformulated conditions as per contract, which a Contracting Party (the user) to the other Contracting Party at the time of conclusion of a contract places. Thereby it unimportant whether the regulation an outwardly separated component of the contract (colloquially "„the small print "“mentioned) to form or to the contract are taken up. Likewise is for the qualification as general trading conditions without meaning, which extent they have, in which character font they are written and which form the contract has.

A model character for this general definition has the regulation of the German civil law ("§ 305 exp. 1 BGB).

Meaning

In the context of the private autonomy dominant in private law the law plans regulations for certain contract types, permitted however mostly that the Contracting Parties in individual cases make supplementing or deviating regulations in their contract. Differently be it only, if a legal regulation not optional (abdingbar) be, but compelling prescribe, that of it in contract not deviate may.

General trading conditions cause that the contract conclusion is simplified, accelerated and standardized by a preformulated set of clauses. They can regulate new, in the law intended contract types in the law of contract. They change usually in relation to the law the distribution of risks and adhesion frequently to favour of the user and facilitate for this the conclusion of the contract. In it at the same time the danger lies that the user, usually a buyer and/or enterprises, who is usually economically stronger and in business more experienced can implement one-sided and/or surprising regulations opposite a consumer, that departs from valuations of the law too far. The need exists to subject and to certain clauses the effectiveness deny general trading conditions of control. While this became to originally leave to the iurisdiction, which could explain individual clauses for futile from the BGB, if they were immoral, the legislator created stepped law by on 1 April 1977 into force regulations specific for the regulation of the right of the general trading conditions (AGB-law) for the handling of AGB. The AGB-law was again waived by the law for the modernization of the law of contract; its regulations were transferred with effect starting from 1 January 2002 with only smaller changes to the civil law book ("§"§ 305-310 BGB).

Legal regulation in Europe

Originally in the German AGB-law developed the rules to the AGB were transferred to a large extent to the European Community law, i.e. to the guideline 93/13/EWG of the advice from 5 April 1993 over abusive Klausen in consumer contracts. This guideline obligates the member countries, certain law standards too issued, which protect the consumers against abusive AGB clauses. In all European Union countries one may count therefore on the fact that in the principle something similar (although by no means identical!) Regulations exist as in Germany.

In the German right the regulations concerned are since the law of contract modernization in the paragraphs mentioned 305 FF. BGB.

The non--European Union member country Switzerland knows so far still no explicit legal regulation of the AGB, but the courts and the literature by a concretizing of general rules (in particular faithful and faith) a legal status comparable in many points caused. It is not impossible however that also in Switzerland in the next years specific legal regulations are created.

Inclusion

General trading conditions become after "§ 305 exp. 2 BGB only a component of the contract between entrepreneurs and consumers, if the user with contract conclusion expressly or, if this reference is possible under disproportionate difficulties only, refers by clear notice to it and the possibility provides for the other Contracting Party of taking in reasonable way of contents of the general trading conditions knowledge. A third condition is that the other part explains itself in agreement with the AGB. The inclusion is relieved with the transportation of human beings in the regular transport service and the conditions for telecommunications and post office.

Individual legal regulations

• Individual contract agreements have priority before general trading conditions.
• Surprising ones general trading conditions, on which the other contract part does not need to count after the circumstances, do not become part of contract.
• Doubts during the interpretation go debited to the user.

Contents control

General trading conditions are subject to contents control after "§"§ 307-309 BGB. In "§"§ 308, 309 BGB a larger number of possible individual clauses is enumerated, which are ineffective after appropriate valuation always which can be made or. To it among other things certain adhesion clauses and warranty clauses belong.

If the catalog does not lead BGB inefficacy in and to day, then is always still BGB to consider. As so-called "“general standard"” this regulation plans that regulations are ineffective in general trading conditions, if they disadvantage the contracting party of the user against the requirements of faithful and faith inadequately. Such a disadvantage can already result draus that a regulation is not clear and understandable. To assume inadequate disadvantage is in doubts also, if a regulation with substantial basic ideas of the legal regulation, from which it is deviated is to be agreed not or if it limits substantial rights or obligations, which result from the nature of the contract, then that the reaching of the contract purpose is endangered.

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• "§"§ 305-310 BGB - organization of right-business obligations by general trading conditions

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