What you need to know about terms and conditions as an online retailer.

Fatih-Kağan Taşkoparan

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T&Cs explained simply: why you need them, what they must contain and what mistakes you should avoid

Wouldn't it be nice if, as an online retailer, you could concentrate solely on selling? Produce or order great products, present them attractively and make people happy with them.

However, it is no longer possible in e-commerce today without a minimum of legal knowledge. This applies not least to the much-discussed general terms and conditions.

What are AGB?

Formally, every sale, whether online or not, means that a contract is concluded between the seller and the buyer. One party makes a contract offer, the other accepts it.

Various rules define exactly how this contract is to be fulfilled. In addition to the statutory provisions, which always apply, GTCs are often used for this purpose. But what do GTCs actually mean?

This is intended to establish legal "guard rails" for repetitive, repeatedly similar transactions. The opposite in legalese would be the individual agreement, whereby the contracting parties renegotiate their terms and conditions in each individual case.

Logically, this is not realistic with dozens to thousands of transactions per day.

As "small print", the GTC are therefore part of the (purchase) contract. This allows important questions to be clarified in advance, for example:

  • When exactly does the contract come into effect?
  • What payment options are available?
  • What does shipping cost?
  • When and how can I cancel the contract?
  • What warranty rights and limitations of liability are agreed?

Who needs AGB?

It is not mandatory to list general terms and conditions. But especially in e-commerce with a large number of more or less standardized transactions, they are definitely recommended.

However, the fact that many processes in e-commerce companies are standardized does not mean that the T&Cs should always be the same. There are even online T&C generators and templates that retailers can use for themselves. As a rule, however, they are not the right way to go.

Only if they are professionally drafted and adapted to the respective industry to which they are to apply can they save time and facilitate the conclusion of contracts.

If the T&Cs are not legally correct and a legal dispute actually arises, they may be invalid, which worsens your position in the dispute.

Finally, GTCs are also advisable in e-commerce because there are various instruction and information obligations for online trading that can be ideally fulfilled with them.

General terms and conditions in e-commerce: a few special features

Unsurprisingly, the content of e-commerce T&Cs differs from that of banks and insurance companies, for example. But there are some basic rules that apply to all online offers - for example, the way in which GTCs are integrated into the store.

There are no generally valid templates for legal texts. It is therefore always advisable to adapt GTCs specifically to the respective situation. The following basic points, among others, must be observed:

  • Are your customers consumers (B2C) or other companies (B2B)? Different and usually stricter rules apply to B2C, such as distance selling law.
  • What type of product are you selling? The requirements for the GTC differ depending on whether you sell goods, services or digital content.
  • Which platform do you use? Do you only run your own online store or are you also represented on the major marketplaces, for example?

In B2C e-commerce, you should also pay attention to the following:

  • The GTC must be drafted in such a way that consumers are able to understand them even without a law degree. This also includes paying attention to font size and a clear structure for good readability.
  • It must be obvious to consumers that the GTC are part of the contract. This means that traders must draw attention to them when the contract is concluded.
  • Once a contract has been concluded, the GTC can no longer be included in the contract. A comparable example in the analog world would be when GTCs are printed on the back of a contract, invoice or receipt. This only works if reference is made to them on the front of the document.
  • In online trading, it is also crucial that consumers knowingly accept the GTC when concluding a contract. In practice, this can be implemented in different ways: By ticking a box that must be set, or the need to scroll through the T&Cs before the order can be sent. In any case, it is not enough to link to the T&Cs somewhere in the menu of your online store.

If these requirements are not implemented, the GTC do not become part of the contract and therefore have no effect. But there are a number of other reasons why GTC law can be ineffective: if it stipulates statutes that are not (or cannot be) valid.

What does not belong in the GTC

The German Civil Code (BGB) regulates the use of GTCs in sections 305 et seq. However, in contrast to the sparse explanations there regarding what GTCs actually are (namely "pre-formulated contractual terms and conditions"), the legal text is much more detailed when it comes to what they mean. not are.

Consumers can easily be disadvantaged by the use of GTCs. In order to protect them, German law contains a number of provisions that declare GTCs invalid under certain circumstances. Put simply, this is always the case if they put consumers at an "unreasonable disadvantage."

What exactly this means can be found in §§ 307 ff BGB. It lists so-called clause prohibitions, where it can still be a matter of opinion as to whether a provision is invalid ("with the possibility of evaluation"). These include

  • Acceptance and performance deadlines: Traders cannot reserve "unreasonably long" or "insufficiently specific" periods until the promised service is provided.
  • Reservation of right of withdrawal: Traders cannot withdraw from their contractual obligations without objective reason.
  • Fictitious explanations: GTCs must not assume that customers are making a legally binding declaration simply because they do or refrain from doing something specific.

The clauses that are always invalid ("without possibility of evaluation") include:

  • Disclaimer in the event of injury to life, limb or health and in the event of gross negligence.
  • Short-term price increases for goods or services to be delivered or rendered within four months.
  • Waiver of actioni.e. if the general terms and conditions stipulate that buyers can only take legal action if they have previously attempted to reach an out-of-court settlement.

Frequent AGB errors

There are a few classics that are repeatedly listed in general terms and conditions but are incorrect. As a result, they regularly become warning traps, especially in e-commerce, which you should avoid at all costs. Here are a few examples:

  1. validity agreement: Formulations such as "Our GTC also apply to all future transactions" are invalid because they contradict the basic idea of consumer protection. Even if a customer buys from you several times, you must refer to the GTC each time, and these must always be accepted again.
  2. Delivery times: This is a difficult topic that requires caution in the GTCs. A sentence such as "Delivery expected in 1-2 working days" would be ineffective and therefore subject to a warning, because it sounds as if retailers can deliver whenever they want.
  3. Insured shipping: It is also not permissible to indicate in the general terms and conditions that shipping insurance is offered, because according to the German Civil Code, the seller bears the shipping risk anyway.
  4. Warranty disclaimer: By now, word has gotten around that the warranty cannot simply be excluded in the B2C sector. However, provisions such as "defects must be reported within two weeks" are also ineffective vis-à-vis consumers.
  5. Written form clause: There is often something like this: "Amendments or additions to this contract must be made in writing; this also applies to the waiver of this written form requirement". This is ineffective because anything that does not require notarization can also be amended in simple text form. "Text form" can also be email, WhatsApp or SMS. "Written form" requires a handwritten signature.

Summary: The most important facts about GTC in three sentences

Although there is no legal obligation to use terms and conditions, as an online retailer you should not do without them.

As many examples here have shown (such as the "written form clause"), the wording of general terms and conditions can quickly become tricky.

If only to avoid falling victim to the incessant wave of warning letters, you should ideally seek legal advice when it comes to general terms and conditions.

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