A company’s terms and conditions do not automatically apply. Rather, they must be included in the contracts with customers in accordance with legal requirements. This can be done in different ways. One possibility could also be inclusion through QR codes. In this article we explain whether this is possible based on recent case law.
I. General terms and conditions only apply under certain conditions
Contrary to a widespread misconception, a company’s general terms and conditions (GTC) do not apply simply because they exist or because they are published on a website. Rather, very specific legal requirements must be met so that the clauses contained in a company’s general terms and conditions, on the one hand, become part of the contracts with customers and, on the other hand, are also effective in their own right.
Dealers and other companies that do not comply with the relevant legal requirements run the risk of not being able to use the clauses that they have regulated in their general terms and conditions for their own benefit against their customers. It is therefore recommended to comply with the legal requirements for the inclusion of general terms and conditions.
II. Requirements for the effective inclusion of general terms and conditions
The legal requirements for the effective inclusion of general terms and conditions in contracts are: § 305 Paragraph 2 BGB. The law generally understands general terms and conditions as all contractual conditions pre-formulated for a large number of contracts that one contracting party (the so-called user of the general terms and conditions) provides to the other contracting party (e.g. the customer) when concluding a contract.
According to the regulation in Section 305 Paragraph 2 BGB, general terms and conditions only become part of contracts if the user of the general terms and conditions
When concluding the contract, the other contracting party expressly points out the General Terms and Conditions, gives the other contracting party the opportunity to reasonably take note of the content of the General Terms and Conditions, and the other contracting party also agrees to the validity of the General Terms and Conditions.
If these requirements are met, the General Terms and Conditions become part of the contract between the General Terms and Conditions user and the other contracting party (e.g. the customer). However, if individual clauses in the General Terms and Conditions violate mandatory law, these clauses are invalid, so that some of them cannot be applied despite the general inclusion of the General Terms and Conditions in the contracts.
III. QR code as a way to get information
1. Various information and information options
The user of the General Terms and Conditions can inform the other contracting party of his General Terms and Conditions in various ways and give the other party the opportunity to gain knowledge of the General Terms and Conditions in various ways, i.e. to view and read them.
For example, the terms and conditions can be clearly displayed in shops. In an online shop, the validity of the General Terms and Conditions upon conclusion of the contract can be indicated by highlighted lettering immediately before the conclusion of the contract, whereby the General Terms and Conditions can be linked on a separate page. In this context, it is also common to tick a check box, but the law does not necessarily require this.
It would also be conceivable to point out the terms and conditions on posters, flyers or in other constellations using a QR code. But is this actually possible?
2. The facts of the case
In a recent case, the LG Lübeck had to decide whether general terms and conditions could be effectively integrated by pointing to an internet address or using a QR code (decision of December 7, 2023 – Ref. 14 S 19/23).
The case concerned the appointment of an expert using an order form. The so-called “terms of engagement” stated that the costs for the expert’s report would be calculated according to the fee table in force at the time of the assignment.
Interested parties could then access this fee table online by either accessing the internet address provided or scanning the printed QR code with their smartphone.
3. The court’s decision
According to the court, the fee table was a general terms and conditions agreement § 305 Para. 1 BGB, which would also have been effectively included in the contract between the user of the general terms and conditions and his customer.
The court was of the opinion that there was, in particular, a reasonable opportunity to obtain information about the fee table:
Under the “Conditions of the Order” there was an express indication that the costs of the report would be calculated according to the fee table in force at the time of the order. Reference was made to the relevant website on which the fee table was stored. There was also a QR code leading to the fee table on the order form. This is sufficient so that an average customer, who is the only factor that matters here, can reasonably obtain knowledge. The average customer in Germany has a smartphone and is therefore easily able to access an internet address stated on the order confirmation or to access a QR code scan.Whether the other contracting party had actually taken note of the fee table (=Terms and Conditions) is irrelevant, as it is not the actual knowledge of the T&Cs that matters, but only the opportunity to take note.
Note: We not only provide our clients who have booked one of the IT law firm’s protection packages with tailor-made legal texts, including legally secure general terms and conditions, but also support them in incorporating them into the contracts with their customers in a legally secure manner. Feel free to book one of our protection packages today. For questions we are at your disposal.
IV. The most important things in brief
General terms and conditions do not automatically apply in contractual relationships because they are designated and published as such. Rather, general terms and conditions must be effectively included in the contracts in accordance with the legal requirements. To do this, the general terms and conditions user must expressly point out the general terms and conditions and give the other contracting party the opportunity to take note of the General Terms and Conditions. This can also be done by means of a link via a web link or QR code, where the General Terms and Conditions can be accessed.
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