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Written form clauses ineffective!

GOOD TO KNOW | 07/11/2016

introduction

Written form clauses, such as those used in pre-formulated rental, work or online shop contracts with consumers, must be adapted when contracts are concluded from October 1, 2016. This results from the "Law to improve the civil law enforcement of consumer protection regulations of data protection law" (Federal Law Gazette 2016 Part I No. 8, issued on February 23, 2016). From October 1, 2016, only the so-called "text form" (e-mail, fax, SMS, etc.) regulated in Section 126b of the German Civil Code may be used with consumers. A personal signature (§ 126 BGB) or an electronic form with a qualified electronic signature (§ 126a BGB) may no longer be requested.

background

Most of the pre-formulated (sample) contracts with general terms and conditions contain clauses with which the effectiveness of certain declarations, e.g. notice of termination, declaration of resignation or contestation, the demand for wages (e.g. to interrupt preclusive periods), vacation entitlements, the notification of material defects, Setting deadlines or damage reports that are bound to be in writing.

The new version of § 309 No. 13 BGB now provides that a provision in such contracts is ineffective due to the notifications or declarations to be made to the user (e.g. employer, landlord, online retailer) in a more stringent form than the text form or is bound to special access requirements.

The new standard only applies to legal transactions with consumers and only those formal requirements that are agreed through legal transactions. The legal form requirements (e.g. for the termination of employment or residential leases) remain unaffected. Contracts that require notarization are also not affected.

Old contracts risk

For "old contracts" that were concluded before October 1, 2016, the new § 309 No. 13 BGB does not apply. However, when a change to an “old contract” is to be assessed as a “new contract” and is therefore also subject to the new legal regulation, will have to be assessed differently. It depends on the scope of the contract change. The line cannot always be drawn clearly. If in doubt, even if only minor changes are made to an "old contract", an attempt should be made to adapt the regulations no longer corresponding to the new § 309 No. 13 BGB in addition to the actually intended change.

Disadvantages threaten

If the clauses are not adapted, the user is at risk of two disadvantages: The clauses that continue to require the written form are then too strict and therefore ineffective. Consumers can then assert their claims up to the limitation period (usually three years). The user, on the other hand, remains bound to the agreed written form with regard to his own claims, as he cannot invoke the ineffectiveness of his own clauses.

Landlords, employers, internet retailers and all other companies that do business with consumers on the basis of pre-formulated contracts should immediately no longer use clauses for all newly concluded contracts that require a written assertion of claims. You should only use the text form.