General terms and conditions (GTC) can be designed as conditions of sale or conditions of purchase and are part of classic contract law. It’s a bit like a marriage contract: you need GTC when the horse has bolted; at best, you never have to pull them out of the drawer. But they have to save you from the worst case scenario (insolvency) when it comes down to it. Therefore, they must be effective and fit your business model.
In terms of design and structure, they act like a law because they are intended to regulate a multitude of future cases in an abstract pre-formulation in order to ensure uniform, smooth business transactions for the company. As a businessman, the entrepreneur may be able to negotiate a concrete, individual contract. With general terms and conditions, on the other hand, it is immediately recognisable if they have been written by a non-lawyer. This does not only concern the question of aesthetics. Linguistic or factual deficits can have harsh consequences. According to the law, ambiguous or unclear GTC are to be interpreted to the detriment of the user (the ratio behind this being that the user neglected the opportunity to formulate them more clearly).
Qualified associations in particular, but also competitors, are authorised by law to take action against inadmissible GTC by way of abstract form clause review. In such a lawsuit, the principle of the most anti-customer interpretation applies. This means that a clause is already prohibited by the court if the text is ambiguous and if one of several possible interpretations leads to a result disapproved by the legislator. This is precisely what makes the use of ambiguous GTC so dangerous.
GTC are sometimes misunderstood by small and medium-sized enterprises as a status symbol: One has to have GTC and, by having them, demonstrates professionalism. In order to avoid costs in drafting them, one copies the GTC of the competitor without thinking much about it (copyright infringement). Or you put together your GTC from the GTC of several providers (also a copyright infringement) and thus produce a patchwork quilt which individual parts do not fit together or sometimes even contradict each other. However, this does not help you when it comes down to it.
Since GTC are intended to ensure the smooth running of business operations and, in the worst-case scenario, to safeguard your company, the first question to ask is where there has been friction so far and where such friction might occur in the future, no matter how small the probability may seem. The first step in drafting general terms and conditions is therefore to gather material: How should a transaction ideally be handled? Where are obstacles to be feared in practice? How can these obstacles best be avoided? We analyse your need for regulation and design customised GTC for the concrete individual case of your business operation, which are not only sensible, but above all can withstand a court review and therefore protect you in case of doubt.
The content of GTC can range from classic commercial contracts (purchase of goods) to terms and conditions for the operation of a gym, for booking a trip or for services provided by an agency.
