If a company contacts potential customers by post and advertises a contract, it may not refer to its general terms and conditions on the internet. This was clarified by the Higher Regional Court of Düsseldorf (judgment of 25.04.2024 – 20 UKl 1/24). This is a so-called inadmissible media break.
When are general terms and conditions effectively included in the contract?
For GTCs to become part of the contract, they must be effectively included in the contract. The German Civil Code (BGB) regulates various requirements for this in Sections 305 et seq. Firstly, the user, i.e. the party whose GTC are to become part of the contract, must expressly refer to them before the contract is concluded. In addition, AGB acc. § 305 Abs. 2 BGB 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. This means that it must be possible for the average customer to take note of the content of the GTC without great effort.
Requirements for reasonable notice
If a contract offer is submitted by letter, as in the present ruling, and reference is made to the GTC on the Internet (available at www…de), this exceeds what is reasonable. This is because it cannot be assumed that all persons have Internet-enabled devices and can therefore take note of the GTC. Instead, the company could and should have enclosed the GTC with the letter.