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Contracting Party
“Real” and “fake” terms and some lawyers have dealt with the topic of “real” and “fake” terms in clause control and created some solution suggestions. Since 2007, discussion takes place, which handle the reform means of the terms and conditions in business traffic. This involves mainly the content control of the general terms and conditions and the delineation of individual agreements. Currently still a major disagreement about the different legislative proposals affecting only the corporate legal relations, because the legal transactions between consumers and resulting legal uncertainties were resolved in 310 ABS. 3 BGB is satisfactory. The possibility and narrowing the substantive influence was recorded in this section the user terms and conditions directly in the text of the law. The corporate legal transactions, however, has some shortcomings and In relation to individual agreements on legal uncertainties which requires a change in the legislation according to the reformers.
It is important to create a clear legal regulation which control subjects ‘real’ terms and conditions (unverhandelbare pre-formulated contract terms) despite the agreement of both parties to a terms and conditions. “Fake GTC”, however, are negotiable formulated draft of contract. This should be subject to control only the terms and conditions, if a Contracting Party unsuccessfully demands change. Thus considering, a Klarstellungs reform of the general terms and conditions-right should be considered to ensure the protection of the other party prior to unilateral shaping power of the user. Currently, the user terms and conditions has an excessive design power, while his party has no way to influence the content of the text of the Treaty.
The general terms and conditions have a characteristic lack of contractual freedom. A Contracting Party can individual agreements on a test of general terms and conditions with high transaction costs is connected, do without, because he can rely on the legal control of the content. This content control therefore takes the place of the missing freedom of contract design, helps but in determining terms and conditions of individual agreements no further, because from an individual contract can only be talked, if the business partner can affect the substance of the contractual terms and conditions.