General Terms And Conditions And Their Meaning

The vernacular also speaks of the "small print". In order not to have to renegotiate contractual texts every time a contract was concluded and to assert their interests, the sellers and producers of goods and services developed pre-formulated contractual models, so-called general terms and conditions. Since the contractual partners are often not economically equal partners in business, the legislator passed the General Terms and Conditions Act in the mid-1970s, which was later integrated into the BGB (Sections 305 to 310 BGB). In simple terms, these paragraphs are about protecting the contracting party to whom these contractual terms and conditions are imposed from unreasonable disadvantages.

These are general terms and conditions if, firstly, the contractual terms are pre-formulated for a large number of contracts, whereby the intention of multiple use is sufficient and secondly, “provided” by one contracting party (user) to the other contracting party. When used against consumers (private customers), single use is sufficient.

General terms and conditions in the construction industry

General terms and conditions are often used in the construction industry. For example, public clients and companies regularly use general terms and conditions, such as general, special or additional contractual terms and standardized service descriptions. But the painter and varnish company (entrepreneur) also becomes the “user” of terms and conditions if, for example, he makes the terms and conditions provided by the associations the basis of the contract.

If terms and conditions are used, they are subject to the so-called content control. The individual clauses are then checked for their compatibility with the general terms and conditions law (§§ 305 ff. BGB). Terms and conditions that are contrary to the terms and conditions and unreasonably disadvantage the contractual partner of the user are then ineffective. However, the content control only protects the contractual partner of the user, for example the painting company, which receives the general terms and conditions of a property developer or general contractor. For example, a clause that makes the acceptance of the work of a subcontractor dependent on the total acceptance by the client is just as ineffective as a contractual penalty of up to 10% of the order amount.

However, if individual contractual terms have been individually negotiated between the contracting parties, we speak of so-called individual agreements. These are not subject to the content control of the terms and conditions. However, case law has set high hurdles for “negotiating”. It is therefore not enough that the parties only talk about a clause or that the gaps in the negotiation protocol specified by the client are simply filled in by hand or marked with a cross. The regulations made must be seriously discussed.

VOB as terms and conditions

The general contractual terms for construction work (VOB / B) are also general terms and conditions. However, they are special because they are not subject to the content control according to §§ 307 ff BGB according to § 310 Abs. 1 BGB (except when used for consumers!). However, this only applies if the VOB / B is agreed "as a whole". If there are even minor deviations from the VOB in terms of content, then all regulations of such a contract - including the adopted VOB clauses - must be checked for their compatibility with the General Terms and Conditions law.

In addition to the VOB / B, the accounting rules of the respective VOB / C also apply as terms and conditions. So the painter wants to deal with a private customer and a business customer with no construction knowledge

(e.g. freelancer, retailer) apply the accounting rules of the VOB without any doubt if he demonstrably hands over the respective section 5 of the VOB or immediately agrees the terms and conditions of the Federal Association for Color Design Building Protection in a legally effective manner. These contain at least some of the most important measurement rules.