Case law on Standard Terms (2021), Perspectives, INN.LAW

Interpretation of the Railway Network Usage Conditions 2013 and 2014: claims for damages for pecuniary losses

A comprehensive disclaimer in Standard Terms under which the user's liability for other damages is excluded even in cases of gross fault (Section 309 No. 7 lit. b BGB) is invalid not only towards consumers but also in B2B transactions, because it unreasonably disadvantages the user's contracting party, Section 307(1) in conjunction with (2) No. 2 BGB. A disclaimer in B2B transactions is therefore invalid if it completely excludes liability for intent and gross negligence in respect of other damages, as would be the case here. Such a far-reaching exclusion of liability unreasonably disadvantages the user's contracting party in B2B transactions as well, because it jeopardises the purpose of the contract (Section 307(2) No. 2 BGB). A business, just like a consumer, is entitled to trust that its contracting party will not harm it through gross negligence or intent. There is therefore a general prohibition on comprehensive disclaimers of liability for gross fault in B2B transactions as well.

BGH, judgment of 3 February 2021 – XII ZR 29/20

Scope of a forum-selection clause

The substantive scope of a forum-selection clause must be determined by interpretation. The interpretation of an agreement on international jurisdiction is a matter for the national court. Where the clause is part of a broader agreement, it is generally governed by the law applicable to the contract, unless Article 25 Brussels Ia Regulation provides specific standards or requirements.

BGH, judgment of 10 February 2021 – KZR 66/17

Liquidated-damages clause for cartel losses

The BGH has decided that a contractor that participated in a cartel is not unreasonably disadvantaged contrary to good faith by a liquidated-damages clause of the kind often used by public principals. The damages claim of a cartel victim that purchased a product at a cartel-inflated price can therefore in principle be effectively liquidated in the purchase contract at an amount not exceeding 5% of the invoice value.

BGH, judgment of 10 February 2021 – KZR 63/18

Lease of commercial premises: meaning of an entire agreement clause

Entire agreement clauses ("No oral side agreements exist", "No oral side agreements have been made", "Oral side agreements do not exist") are intended, whether they are included in the contract as Standard Terms or individually negotiated, to confirm that the written contract contains all of the provisions the parties have agreed on with respect to the subject matter. The Federal Court of Justice has settled that such clauses merely restate the presumption of completeness and accuracy of the written contract that already applies in any event. They leave the party that wishes to rely on a different oral agreement the option to provide counter-evidence.

An entire agreement clause, as in the present case, cannot give rise to an irrebuttable presumption that no oral agreements exist. Nor can it be read to mean that arrangements made during the pre-contractual negotiations no longer hold. As Standard Terms, a clause aimed at this would in any event be invalid in light of Sections 305b, 307, 309 No. 12 BGB.

BGH, judgment of 3 March 2021 – XII ZR 92/19

Invalidity of a strict-liability liquidated-damages clause / time-of-essence transaction

Strict liability can only be effectively agreed in Standard Terms by way of exception, in particular where it is justified by overriding interests of the user or offset by legal advantages granted to the other party.

A claim for delay damages where the delivery deadline is missed cannot be made strict in Standard Terms either, because Section 286(4) BGB is one of the essential principles of the statutory rules on default.

A Standard Term governing a time-of-essence commercial sale may be valid where weighty reasons recognisable to the burdened party in contract negotiations support such a contract design, or where such clauses are customary in the industry, as is the case with furniture supply contracts.

OLG Bamberg, judgment of 5 March 2021 – 3 U 68/20

Use of a price clause and parts of an exclusivity clause in the Standard Terms of a mobile telecommunications provider

The wording "without prejudice to other statutory provisions" is valid. It does not violate the transparency requirement in Section 307(1) sentence 2 BGB.

Note: The court's reasoning on the transparency requirement (para. 23 et seq.) is particularly interesting.

BGH, judgment of 11 March 2021 – III ZR 96/20

Insurer's duty to inform about an invalid clause in its general insurance terms

The duty of an insurer to inform affected policyholders about an invalid clause in its general insurance terms can be based on Section 8(1) UWG, because a clause that violates Section 307 BGB also violates a market-conduct rule within the meaning of Section 3a UWG.

Note: The reasoning on the so-called blue-pencil test (para. 64) is also worth reading.

BGH, judgment of 31 March 2021 – IV ZR 221/19

The XI. Civil Senate, responsible for banking law, has held that clauses in a bank's Standard Terms are invalid where they deem the customer to have consented to changes in the Standard Terms and special conditions without any substantive limitation.

BGH, judgment of 27 April 2021 – XI ZR 26/20

Invalid entry clause in an architect's contract

The clause used in template contracts in favor of architects, "The contractor is entitled, even after termination of this contract, to enter the building or structure in coordination with the principal in order to take photographic or other recordings", is invalid under Section 307(1) sentence 1 BGB because, on the required objective interpretation, it unreasonably disadvantages the architect's contracting party contrary to good faith.

BGH, judgment of 29 April 2021 – I ZR 193/20

Valid cancellation fee in an accommodation contract (B2B)

A clause that links a cancellation from a certain point onwards to payment of a fee of 90% of the booking price does not amount to an unreasonable disadvantage to the claimant within the meaning of Section 307 BGB, even taking into account the values underlying Section 308 No. 7 and Section 309 No. 5 BGB (which are not directly applicable under Section 310 BGB).

The reasonableness review takes the entire contractual arrangement into account. Where substantively connected rules stand in a reciprocal relationship, advantages and disadvantages may be set off against one another.

The starting point for assessing whether the cancellation fee is unduly high is the amount that would otherwise be owed. In the case at hand, it is relevant that the claimant had no statutory right to unilaterally terminate the concluded contract without cause. Without the contractually agreed right to cancel the contract, the claimant would, subject to specific statutory grounds for release, remain obliged under the principle of pacta sunt servanda to pay the full purchase price even if it did not take the service. Where the defendant grants the claimant a cancellation right not provided for by statute, it improves the claimant's legal position while worsening its own. That holds even where the claimant is obliged to pay a 90% cancellation fee from a certain point onwards. The claimant's legal position remains improved compared to the statutory default. There is therefore no unreasonable disadvantage.

OLG Köln, judgment of 14 May 2021 – 1 U 9/21

Processing fee for calculating a non-acceptance compensation

The flat processing fee in a savings bank's Standard Terms for calculating non-acceptance compensation withstands content review under Sections 307, 309 No. 5 BGB.

BGH, judgment of 8 June 2021 – XI ZR 356/20

Invalid fee-increase clause in a property-management contract

A clause in a property-management contract that provides for a flat annual remuneration increase of 4% unreasonably disadvantages a condominium association of which consumers are members and is therefore invalid.

LG Frankfurt a. M., judgment of 24 June 2021 – 2-13 S 35/20

Reference: Poleacov, P. (2025). Case law on Standard Terms (2021). INN.LAW. https://inn.law/en/perspectives/jurisprudence-2021/