General terms are rules prepared in advance by one party for an indefinite number of similar legal relationships and are presented to the other party as a condition for concluding a contract.⁹⁵ The content of general terms is not created through the mutual participation of both parties but only by one. General terms may comprehensively regulate a specific type of contractual relationship or address only specific issues, such as a guarantee for flawless operation, payment terms, and similar matters. The party presenting the general terms is not willing to negotiate their content but offers them as a condition for concluding the contract.⁹⁶

General terms determined by one contracting party, whether included in a standard contract or referred to in the contract, supplement specific agreements between the contracting parties within the same contract and are generally binding in the same way as those agreements.⁹⁷ General terms must be published in a customary manner (e.g., on a website, on the back of an invoice, etc.). They bind the contracting party if they were known or should have been known at the time of contract conclusion. If general terms conflict with specific agreements, the specific agreements prevail.⁹⁸

In Article 121, the OZ specifies when general terms may be void and when a court may refuse their application. This may occur, among other cases, if they are unfair or excessively strict for the party that did not draft them. Unfair terms are those that create an imbalance in the rights and obligations of the parties to the detriment of the party that did not propose them.

Exercise:

Erika bought a coffee machine. The receipt stated that the seller’s general terms and conditions were part of the contract. These were not attached but a website link was provided where they could be accessed. Among other things, the terms stated that the buyer could purchase coffee for use in the machine exclusively from the seller. Erika did not like this clause.

• Did the general terms and conditions become part of the contract?
• Which legal source regarding general terms and conditions is relevant, and under what conditions?
• Could the clause be considered unfair? Provide arguments!