GTC: The 8 Most Important Points That Must Be Covered

GTC are a collection of rights and obligations that form part of multiple contracts. Creating or amending GTC requires consideration and inclusion of various legal points. Especially in the context of digitization, it's essential to first gain an overview of the entire spectrum of guidelines, which is subject to constant change. Below, we provide a glimpse into the world of GTC with an excerpt of eight important criteria.

1. Principles of Disclosure  

GTC must always be clearly indicated. Offline, this is usually done with a notice within the contract referring to the GTC printed on the backside. In online shops, there must be a clearly visible link to the GTC, leading users directly to them with a mouse click.

Consumers must have easy access and the opportunity to read all GTC and make a voluntary decision about their acceptance. GTC must be complete, legible, and understandable.

For online transactions, it's also necessary to provide a direct and easy way to download, save, and print the entire document.

2. Legal Acceptance of GTC 

In offline transactions, a buyer's signature makes a contract binding. If this contract is accompanied by an obvious reference to the GTC, the buyer equally accepts the GTC, making them binding for the contract.

In e-commerce, most entrepreneurs opt for the relatively uncomplicated and secure method of a checkbox that must be ticked before payment. It's important to include a technical block so that finalizing the purchase is not possible without checking the box.

A customer can explicitly or implicitly agree to the GTC. Legally, there is a full acceptance when the GTC has been clearly read and there is clear consent. If the GTC are accepted, even if they have only been partially read or skimmed through, it constitutes a global acceptance.

3. Changes Within GTC

The principle of immediate visibility and clear, voluntary acceptance also applies to revised GTC in the consumer sector. Simply notifying of changes is not sufficient; the customer must agree to the new terms. Otherwise, the changes are ineffective.

4. Timing of Contract Conclusion 

For consumer contracts, the timing of the notice of GTC is crucial and must be before the conclusion of the contract. If GTC are disclosed only after the purchase, for example, only on the delivery note, they are not valid. In practice, such an obvious notice may include displaying GTC within the store or offering a link for inspection and download before purchase online. GTC must be accepted by ticking a box to complete the purchase.

5. The Unusualness Rule

GTC are often lengthy to read. Therefore, if consumers believe they already know the most important parts of certain GTC because they often resemble each other, they accept them without reading them in detail.

To protect this majority of buyers, the law has devised the unusualness rule. According to this rule, it is legally required to point out possible "unusual clauses" in a contract. The notice must be clear—ideally in bold font. Even better is a separate reference. The rule is: the more obvious, the better—especially if the user has little or no knowledge of the respective industry.

But how does the law define "unusual clauses"? Obvious criteria include, for example, if they contain unexpectedly industry- or business-unrelated criteria, deviate significantly from legislation, or heavily disadvantage the consumer in their rights. In doubt, the court must decide whether a clause can be classified as unusual. The fact is that the buyer is always perceived as the weaker party.

As a business owner, you must be able to prove the obvious notice of the controversial contract point. Otherwise, you will lose out. If, however, you have provided secure evidence, it counts as global acceptance, and the user must comply with the content of the clause.

6. Extra-contractual Agreements 

In principle, extra-contractual agreements always precede GTC. Therefore, it is advisable to always draft separate agreements in writing and have them confirmed by both contracting parties with a signature. Clear and unambiguous wording is essential because Swiss law includes the ambiguity rule. In short, in case of doubt, unclear wording usually favors the consumer.

7. Prohibition of Abusive GTC

Already in 2012, certain points of the European e-commerce directives were legally incorporated into the Swiss Unfair Competition Act (UCA) as part of its revision. According to Article 8 UCA, so-called abusive GTC towards consumers are legally prohibited. This restricts the general freedom of contract that prevails in Switzerland.

This means that GTC cannot contain clauses that present a significant or unjustified imbalance in the rights and obligations of the consumer. The law does not contain a list of examples of such clauses. These can only be discussed on reputable online platforms. Therefore, it primarily depends on the knowledge and sensitivity of the contract drafter. Ultimately, the court decides whether a clause is abusive.

8. Inclusion of all basic contents during initial drafting

It is important to include all legal basic points in the GTC when drafting them for the first time, which are important for the time before, during, and after the purchasing process. In doing so, you should keep the entire purchasing process in mind.

Some important clauses include:

• Warranty and guarantee provisions
• Payment conditions
• Delivery conditions
• Return instructions
• Limitation of liability
• Legal information and jurisdiction (including a separate reference to Swiss law)
• Data protection provisions

Legal Assistance from a Specialized Attorney

The legislation includes a whole range of further provisions. These include general rules as well as rules tailored to specific business fields. In particular, attention to detail is required within the data protection provisions, and you must consider any current changes in the law. The engagement of an experienced lawyer is strongly recommended by Swiss legal associations for drafting GTC. Such a lawyer can also provide you with professional support in case of any changes to your GTC.

Knowing how challenging it can be to find a suitable lawyer, we have launched GetYourLawyer. We offer you the opportunity to receive offers from specialized lawyers in your region with a free online request, from which you can choose a suitable lawyer.