Following on from our previous article on electronic accounting and legal aspects of digitization, we continue with an article on the electronic incorporation of general terms and conditions.
Pursuant to Section 273 of Act No. 513/1991 Coll. COMMERCIAL CODE (hereinafter referred to as the "CC"), quote:
"(1) Part of the content of the contract may also be determined by reference to general terms and conditions drawn up by professional or interest organizations or by reference to other terms and conditions known to the parties entering into the contract or attached to the draft.
(2) Deviating provisions in the contract shall take precedence over the wording of the terms and conditions referred to in paragraph 1.
(3) Contract forms used in business transactions may be used to conclude a contract."
The law thus distinguishes between three types of terms and conditions by which part of the content of a contract may be determined by reference to them:
- general terms and conditions
- terms and conditions known to the contracting parties
- terms and conditions attached to the draft contract
In the case of general terms and conditions drawn up by professional or interest organizations (which are assumed to be known to both contracting parties), these shall become part of the contract if the contract refers to them. In the second case, these may be terms and conditions that are known to at least one of the contracting parties (at least the one who proposes them as part of the contract), and these shall also become part of the contract if the contract refers to them. In the third case, these are terms and conditions that are unknown to the contracting party and must be attached to the draft contract or referred to in the contract. If such conditions are not attached to the contract, the contract may be vague and, under certain conditions, considered invalid for this reason.
In commercial contractual relationships, we therefore currently often encounter the use of general terms and conditions, the main purpose of which is to facilitate and speed up the process of concluding contracts in situations where certain circumstances between the contracting parties recur regularly, and it is therefore not practical or efficient to include them in contracts in each individual case. A reference to the general terms and conditions of the contracting party is thus included in the contract, thereby supplementing its content in a relatively simple manner within the meaning of the above-mentioned Section 273 of the Civil Code.
For the sake of completeness, we note that other terms and conditions are usually drawn up by individual business entities, which enforce their application in the contractual relationships they enter into. We often encounter them in the purchase, sale, and distribution of goods and the provision of various services. These terms and conditions are not generally known because they are only used within a narrower area of business or a narrower circle of persons. They are therefore subject to stricter conditions of bindingness. In addition to an explicit reference in the contract, they must also be either (demonstrably) known to the contracting parties (e.g. from previous cooperation in long-term contractual relationships) or attached to the draft contract. It should be noted here that it is not sufficient for other terms and conditions to be made available for inspection only at the time of signing the contract.
Based on the above, it is clear that the OZ does not require the terms and conditions to be signed by the contracting parties. However, this is not the case if the unsigned terms and conditions include a contractual agreement for which the law expressly requires written form. The validity of a written legal act requires the signature of the person acting, otherwise it cannot produce the intended legal effects. Therefore, if, for example, an agreement on a contractual penalty must be in writing according to the law, the terms and conditions in which it is included must also be signed (in addition to the contract itself). In view of the above, it is clear that, for example, an agreement on a contractual penalty, as an institution for which written form is required by law, requires the signature of the parties to the contract in order to be valid as a written legal act.
The process of incorporating general terms and conditions into a contract concluded by electronic means has several specific features.
First, the general terms and conditions must be confirmed, i.e., agreed to. It is generally accepted that consent to general terms and conditions can be expressed in the electronic world by clicking on the "I agree" or "I accept" button using a pointing device (e.g., a mouse). The condition is that this button must be marked in such a way that it clearly indicates the contractual party's willingness to be legally bound by the general terms and conditions. Clicking the appropriate button replaces the signature of the contractual party and leads to the relevant legal consequences.
Before concluding the contract, the contracting party must be given the opportunity to familiarize themselves with the wording of the general terms and conditions; for this reason, it is therefore necessary to include an explicit reference to the wording of the general terms and conditions in the contract. Currently, a reference to the general terms and conditions is usually made in the form of a hyperlink, which allows easy access to the text of the general terms and conditions.
Based on the above, it can be concluded that the general terms and conditions are incorporated into a contract concluded by electronic means if the contracting party clicks on the "I accept" button expresses its agreement with the wording of the general terms and conditions, a link to which is clearly placed near this button.
Digitization brings several benefits to commercial companies and other entities, primarily reduced expenses, time savings, easier access to documents, and many others. However, when introducing new technologies into practice, it is important not to forget to comply with the rules of personal data protection.
With its many years of experience, the law firm Hronček & Partners, s. r. o. guarantees the provision of high-quality legal services. If you need advice or assistance with any questions relating to digitization/GDPR, please do not hesitate to contact us. We are at your disposal.
