Voidability Standard Terms and Conditions for Consumer also Invalid in B2B

Businesses love to standardize their contractual relationships – and that with good reason. Usually, the rules on standard terms and conditions are consumer protection rules (§310 II BGB). The Bundesgerichtshof (re: VIII ZR 141/06) has now set a new precedence on September 19, 2007 answering the question: What happens to standard stipulations clauses in B2B when they are void for consumers. Do the consumer rules affect the situation nevertheless?


Max bought a used car for his business from the defendant. This car 7 year-old car was sold for € 30,000. The defendant’s standard contract contained the stipulation “total mileage as pre-owner claimed” and added in handwriting the mileage “25,760” in its preprinted text. The form contract stipulated further that the car was sold “as is" and without any and all warranty. Later, it turned out that in reality the mileage was around 75,000. The plaintiff voided his contract by withdrawing his offer on the grounds of fraudulent misrepresentation (“wegen arglistiger Täuschung anfechten” or colloquially “widerufen wegen Täuschung”). Since the defendant refused to take the car back and return the money, legal action was taken.

The defendant argued that the consumer rules on standard terms and conditions (Allgemeine Geschäftsbedingungen) are not applicable in transactions B2B. The Federal Supreme Court did not follow that argument. It held that the violation of §309 BGB is an indication that the use of such clause is unlawful – also used with business customers. In other words, a clause that is unlawful in accordance with §309 BGB is not binding for the consumer and so will usually be invalid among businesses. An exception will be made when the special needs of business interaction exceptionally determine the clause as reasonable (§310 I 2 BGB).

§309 BGB was violated when the vendor wanted to disclaim himself from any and all possible damages. Disclaiming for liability for bodily injuries and health damages (§309 no. 7 lit. a BGB), other damages (§309 no. 7 lit. a BGB), also for gross negligence (§309 no. 7 lit. b BGB) is not only towards consumers but also towards businesses invalid as it represents an unreasonable disadvantage to them. In other words, neither towards businesses and especially not towards consumers is a full disclaimer lawful.


It is not legally possible to ward off any and all dangers. As the saying goes: No risk, no fun. Drafting your standard terms and conditions is something that only a lawyer should do for you. Therefore this legal situation deserves:




Published on the old CMS: 2008/6/9
Read on the old CMS till November 2008: 2,885 reads


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