Payment for Offers in Small Print

This article will examine why costs for bids are invalid and that this cannot be changed with the “small print”.

Imagine you had an accident and heavily damaged the car. So you take it to a car repair service to determine if it could still be repaired and how much it would cost. As you return the next day, the grease monkey tells that it’s not worth it to repair the old jalopy. The next thing the grease monkey did was present the invoice. After refusing, you were sued in court. This is approximately what happened in the judgment of OLG Karlsruhe (December 29, 2005, re 19 U 57/05). This contractual clause violates the rules on standard terms / contracts. §307 I 1, II  BGB. This legal rule determines that standard stipulations contradicting essential legal rules are invalid if they are inadequate. Such an essential rule is to be found in §632 III BGB). This legal provision determines that in-doubt offers are not to be billed.

Such stipulation is also to be inadequate. That will be the case if the rule is unjust following the doctrine of equity and fair dealing. Customers normally expect bids to be without cost – just as the law reflects it. Also the way these stipulations were to be made part of the contract. The customer-to-be had no chance to decide if he wanted to close a contract or not. He had already done so. Running into a contract without even having the chance to consider the standard terms. The possibility to make inquiries is spoiled with this approach. Such behavior can also be seen as forcing somebody to close a contract. This is by every means unjust.

However, this does not automatically mean that an offer for a certain service or product may never be invoiced. Business persons can agree for a payment only if this is expressly and agreed up front. Such an agreement cannot be construed through standard terms. So if you turn over your car to a mechanic to find out how much a repair will cost and he insists that you pay a fee of € 50, that will be valid and not refundable. However, if a grease monkey just silently takes in your car, looks at it, and writes you his bid attached to an invoice, this will not do it.





Published on the old CMS: 2007/1/18
Read on the old CMS till November 2008: 166 reads