Formal requirements in general terms and conditions

The Act to Improve the Civil Enforcement of Consumer Protection Provisions of Data Protection Law (Gesetz zur Verbesserung der zivilrechtlichen Durchsetzung von verbraucherschutzenden Vorschriften des Datenschutzrechtes) amends Section 309 No. 13 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), which previously declared such form requirements invalid that provided for a stricter form than the written form.

However, since this contractually agreed form is less strict than a legally prescribed written form due to the provision of Section 127 (2) BGB, the simple text form is usually sufficient here as well.

Many consumers are unaware of this, so that they do not assume that they are complying with the written form requirement by means of a simple e-mail, although this may already be the case de lege lata.

The legislator took this as an opportunity to amend the norm and adapt it to the practical circumstances in the sense of clarification.

Accordingly, the wording is now directed at the ineffectiveness of a form clause that prescribes a stricter form than the text form.

One consequence of this is that standard contracts must be adapted to the requirement of an amendment in the sense of the new legal situation.

This is because standard terms and conditions concluded as of 01.10.2016 are subject to the new regulation.

We will be happy to help you with our practical experience and expertise as lawyers in the field of contract drafting and, together with you, find a legally effective redrafting within the scope of legal advice.