Waiver of written form requirement in GTC
A tightening of § 309 No. 1.10.2016 occurs. 13 BGB in force. The possibility of the agreement of written form in GTC is omitted.
Until the 30.9.16, the agreement of the written form in ABG is not yet inadmissible:
“A provision by which advertisements or declarations to be given to the user or to a third party are bound to a stricter form than the written form or to special access requirements;”
From the 1.10.2016, only text and less can be agreed – unless notarial certification is required:
“Even to the extent that a deviation from the legal regulations is permissible, in general terms and conditions is ineffective a provision by which advertisements or declarations to be made to the user or a third party are bound
A) to a stricter form than the written form in a contract for which notarial certification is prescribed by law or B) to
a stricter form than the text in other contracts other than those referred to in (a), or
c) to special access requirements. “
In other words, if a written form is provided in GTC for the delivery of a declaration by the customer or a third party (e.g. “… is to be communicated in writing within 14 days….”), this is not with § 309 Nr. To reconcile 13 BGB. Such a clause would violate AGB’s law. The new GTC law allows the agreement of the text form. What is textual is governed by § 126b BGB:
“If it is prescribed by law, a legible declaration, in which the person of the declarant is called, must be placed on a durable medium. A durable disk is any medium that
1. It allows the recipient to store or save a declaration on the data carrier to him personally, in such a way that it is accessible to him for a reasonable period of time, and
2. It is appropriate to reproduce the declaration unchanged. “
A written form requirement agreed according to the 1.10.2016 in GTC would be ineffective, so that any form would be possible. For example, it could Then also verbality suffice.
By type. 229 § 37 EGBGB, the change has no effect on contracts concluded before the 1.10.2016.
Warning danger of warning
A warning risk arises from a violation of § 1 Unterlassungsklagengesetz:
“Those who, in general terms and conditions, use provisions which are ineffective according to § § 307 to 309 of the Civil Code, or recommend for legal transactions, may, on omission and in the case of the recommendation, also avail of revocation be taken. “
Therefore it is appropriate to check whether your GTC contain a written form requirement and if necessary act!
Federal Government bill on the draft law to improve the civil enforcement of consumer protection laws of the 15.4.2015 (BT-Dr 18/4631)