Whoever 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.
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