General terms and conditions (GTC) can regulate standard terms that occur in every contract with customers, simplifying the contracts.
Permissibility of GTC
In Switzerland, there is no obligation to use general terms and conditions. General terms and conditions are permissible. However, they may not violate mandatory statutory law.
Appropriateness of GTC
If no general terms and conditions are used, the statutory provisions apply unless otherwise agreed in the contract.
Apart from mandatory provisions, it is permissible to modify the statutory provisions. This can be done either in the contract itself or in the GTC.
It is often in the interest of companies to modify the statutory provisions, particularly when a large number of similar contracts are concluded (e.g. sales contracts). The statutory provisions may sometimes be unclear or not perfectly suited to the business, which is why general terms and conditions make sense for this reason as well.
General terms and conditions can define standardised rules for the business that apply to all contracts with customers. This relieves the contracts, simplifies processes, and thereby provides security for the company.
Validity of GTC
In order for general terms and conditions to be valid, they must be incorporated into the contract with the customer and the customer must have the opportunity to acknowledge them.
Inclusion of GTC
In order for general terms and conditions to take effect, they must be included into the contract with the customer. General terms and conditions can be incorporated into the contract in various ways. It is essential that it is made clear (in writing) that the general terms and conditions are intended to apply to the contract with the customer.
Opportunity for Acknowledgment
The customer must have the opportunity to take note of the general terms and conditions before concluding the contract. Actual acknowledgment is not necessary. Some ways to make the general terms and conditions known to customers include:
- Printing the GTCs on the back of the contract
- Providing a copy of the GTCs along with the contract
- Displaying the GTCs in the store (e.g. behind the counter)
- Publishing the GTCs on the website
- etc.
Content of GTC
The content of general terms and conditions depends on the nature of the business and the contracts concluded with customers. Depending on the business, general terms and conditions can either comprehensively and in detail regulate all conceivable issues or be simple and concise.
Typically, general terms and conditions include provisions on the following items:
- Formation of the contract
- Rights and obligations of the parties
- Default (payment, delivery, etc.)
- Warranty (if applicable, guarantee provisions) in sales and service contracts
- Liability
- Data protection (especially online businesses)
- Applicable law and jurisdiction
Limits of GTC
Mandatory law cannot be modified through contracts or general terms and conditions. Provisions in GTCs that violate mandatory law are void.
Unfair provisions in the general terms and conditions, which unilaterally amend the legal order in a manner contrary to good faith and fair dealing, are not permissible (Art. 8 UWG).
Unusual provisions in general terms and conditions that are unexpected for the contracting party are not binding according to the case law of the Federal Court (Unusualness rule).
Interpretation of GTC
Whether a provision in the general terms and conditions is abusive, unusual, or unclear is determined through interpretation.
Uncertainties in contracts or general terms and conditions result in uncertainty about the rights and obligations of the parties and can lead to legal disputes. Uncertainties are resolved through interpretation. When interpreting, consideration is given to who drafted the contract or general terms and conditions. In case of doubt, the interpretation is made to the disadvantage of the drafter (Uncertainty rule).
Services
Further reading
