info@winheller.com+49 (0)69 76 75 77 80Mon. - Fri. from 8am to 8pm, Sat. from 8am to 5pm

In Germany Individually Legal Contractual Clauses Can Be Inadmissible in Combination

Jun 30, 20 • Commercial LawNo Comments

In Germany Individually Legal Contractual Clauses Can Be Inadmissible in CombinationWhoever wants to rent or lease business premises in Germany has to accept or draft general terms and conditions. But please note: Individual contract clauses, which were previously permissible on their own under the law on general terms and conditions, may well be inadmissible when combined.

Product range limitation inadmissible without protection of competition

On February 26, 2020, the Federal Court of Justice (BGH) ruled that in a form-based rental agreement, the agreement of a business obligation with product range limitation on the one hand and the exclusion of protection of competition, product range and industry on the other hand are incompatible with GTC law.

GTC clauses permissible individually, but not together

The tenant was the operator of a fast-food restaurant specializing in potato dishes, which was located in a shopping center.

The BGH states that each clause is admissible on its own, as it has already ruled in the past. However, the cumulative agreement of such clauses constitutes an unreasonable disadvantage (§ 307 BGB).

The BGH argues that the cumulation of the clauses puts the achievement of the purpose of the contract at risk.

One of the landlord’s main obligations is the undisturbed use of the leased property, which also includes the protection of competition inherent in the contract. Contrary to an occasional opinion in literature and case law, this also applied to a shopping center. No reason was found to assess that situation any differently than in a conventional shopping street.

Not every commercial tenant has to accept overlapping product ranges

Moreover, according to the court, it is a question of the individual case, such as the operating concept and the size of the shopping center, whether a tenant has to accept overlapping product ranges. If the tenant was additionally subjected to a duty to operate with a fixed product range, the landlord could locate competing companies in the immediate vicinity of the tenant. However, this would put the tenant’s turnover and business calculations at risk without being able to adapt by changing the product range or – to reduce costs – by shortening business hours. This constitutes an unreasonable disadvantage according to § 307 BGB resulting in the invalidity of the clauses.

All contracts affected by the BGH ruling

What the BGH has decided for commercial leases is generally also applicable to other contracts: Contractual clauses which may be permissible on their own may be inadmissible when used in combination.

WINHELLER checks your contracts

It is therefore advisable to always have contracts and general terms and conditions of business checked in advance by a contract law attorney. We will be happy to assist you in this with both word and action. Please feel free to contact us.

Continue reading:
Online Platforms Have to Change Their General Terms And Conditions!

Thomas Schwab

Thomas Schwab

Attorney Thomas Schwab mainly handles general contract, corporate, civil, commercial, inheritance and international business law matters.

>> show profile

Leave a Comment

Your email address will not be published. Required fields are marked *

WINHELLER Blog via Newsletter

Subscribe to our free newsletter and receive regular updates on German business law by e-mail. (Mandatory fields are marked with *)

German Business Law News (4 times a year)
I would like to subscribe to the selected newsletter and for that purpose give my consent to WINHELLER to process my above mentioned data. I have read the "Information for Data Processing in the Newsletter Subscription". I understand that I can revoke my consent at any time with effect for the future by clicking the unsubscribe button within the newsletter. *