If a company contacts potential customers by post and refers to its General Terms and Conditions (GTC) on the internet, this constitutes an impermissible media breach. This was expressly clarified by the Düsseldorf Higher Regional Court in its ruling of April 25, 2024 (case no. 20 U 1/24). In this case, it became clear that the reference to general terms and conditions available online in a letter sent by post does not meet the requirements for the inclusion of contractual terms and conditions.
What does an impermissible media break mean?
An impermissible media discontinuity always occurs when information or documents that are necessary for the conclusion of a contract are distributed on media that are not uniformly accessible. In this case, there is a change of media from the physical (letter post) to the digital medium (Internet). This can lead to problems if the recipient has no way of easily using the digital medium to take note of the GTC. In contract law in particular, it is important that all contracting parties are able to fully understand and easily access the contractual terms and conditions. The inadmissible media break is therefore a frequent point of contention when including GTCs.
When are general terms and conditions effectively included in the contract?
For general terms and conditions to become part of the contract, they must be effectively included in the contract. The legal basis for this can be found in Sections 305 et seq. of the German Civil Code (BGB). According to this, the user, i.e. the party wishing to include their GTC in the contract, must expressly inform the potential contractual partner of the GTC before the contract is concluded. An inadmissible media break can impair this process, as the conditions for effective inclusion are not met.
According to § 305 para. 2 BGB GTC only become part of the contract if it is reasonably possible for the other contracting party to take note of the content of the GTC. An inadmissible media disruption can be problematic here, as it must be possible for the average customer to view the GTC without major effort. A reference to GTCs on the Internet is not sufficient if the contract offer is sent by post and there is therefore no immediate opportunity to read the GTCs.
Reasonable notice requirements and impermissible media disruption
The ruling of the Düsseldorf Higher Regional Court clearly shows that a company could have avoided the inadmissible media break. If the company had enclosed its general terms and conditions directly with the letter, the customer would have had the contractual conditions directly in front of them and would therefore have been able to take note of them without further ado. This would have been a reasonable form of notification. In this case, however, the recipients had to go online to read the terms and conditions, which was deemed unreasonable. The impermissible media disruption here was that the accessibility of the GTCs depended on an internet connection, which cannot be taken for granted.
This requirement of immediate knowledge of the GTC is intended to ensure that every customer, regardless of technical equipment or media access, is able to inform themselves about the terms and conditions of the contract. Failure to enclose the GTC in physical form constitutes an impermissible media disruption that calls into question the effectiveness of the inclusion of the GTC in the contract.
Consequences of an inadmissible media breach
The inadmissible media break can have considerable legal consequences for companies. In cases such as the ruling of the Higher Regional Court of Düsseldorf discussed here, there is a risk that the GTC as a whole will not become part of the contract and therefore will not apply to the contract. This is particularly critical for companies that regard their GTCs as part of their business strategy, as certain provisions that are only set out in the GTCs do not apply as a result.
One solution to avoid inadmissible media discontinuity is to send customers the GTC in the same form as the contract offer. This can be done by post if the offer was also submitted in this way, or digitally if all communication takes place online. An unacceptable media disruption is an avoidable risk that can easily be circumvented with careful planning and legal advice.
Conclusion: Inadmissible media disruption and its significance in contract law
An inadmissible media disruption represents a significant hurdle when incorporating GTCs into contracts. For companies that want to unilaterally determine their contractual terms and conditions and regulate them through GTCs, it is essential to consider the requirements for acknowledgement and inclusion in order to avoid an impermissible media disruption. This is the only way to ensure that the GTC actually become part of the contract and that the desired provisions are applied. The ruling of the Higher Regional Court of Düsseldorf should therefore be seen as a warning signal for companies and entrepreneurs to ensure that their GTCs are provided in a consistent and accessible manner.
