Purpose of GTCs
In order to avoid negotiating individual contractual terms with each client, companies make use of GTCs. These are pre-formulated contractual clauses designed to simplify and standardise the conclusion of contracts.
In Switzerland, the principle of contractual freedom applies, allowing parties to determine the content of their agreements themselves. Therefore, GTCs may deviate from statutory provisions in many cases. However, whether such deviations are legally permissible and valid depends on several conditions.
Validity of GTCs
GTCs are valid if they are contractually agreed upon by the parties and if customers have the opportunity to take note of them when concluding the contract. They must therefore be made accessible in such a way that clients can review them at the time of contracting.
For online contracts, this typically occurs through a link to the GTCs, with acceptance confirmed by ticking a checkbox. In practice, however, GTCs are often accepted without being read. Anyone who simply clicks “I accept the General Terms and Conditions” accepts the GTCs as a whole – a practice known as global acceptance.
The Unusualness Rule
According to the case law of the Swiss Federal Supreme Court, the validity of global acceptance is limited by the so-called Unusualness Rule. Under this rule, GTC clauses do not apply if they are objectively unusual and contain matters unrelated to the transaction.
The Ambiguity Rule (in dubio contra stipulatorem)
If individual provisions are unclear or ambiguous, their meaning must be interpreted according to the Ambiguity Rule. The decisive factor is the actual common intention of the contracting parties.
If this common intention cannot be established, the clauses are to be interpreted according to their wording and the circumstances under which they were agreed. In case of doubt, unclear clauses are interpreted to the detriment of the party that drafted them.
Unfairness
Clauses that are unfair within the meaning of Article 8 of the Unfair Competition Act (UCA) are inadmissible or invalid. According to this provision, it is considered unfair if a party uses GTCs that, in violation of good faith, create a significant and unjustified imbalance between the contractual rights and obligations to the detriment of consumers.
According to prevailing doctrine and case law, such unfairness exists, for example, when a contractual provision unduly restricts the consumer’s economic freedom of choice or misleads them about the actual content of the contract.
Conclusion
GTCs facilitate business transactions and promote standardisation – but they must not create an imbalance to the detriment of consumers. Transparent, fair, and comprehensible contractual terms are not only legally required but also foster trust in the company.
The attorneys-at-law at Pilatushof AG are pleased to assist you in all matters of contract law, particularly with the review, drafting, and assessment of General Terms and Conditions and contracts.