Division 2 Drafting contractual obligations by means of standard business terms

Section 305 Incorporation of standard business terms into the contract

(1) Standard business terms are all contract terms that are pre-worded for more than two contracts which one contractual party (the user) presents to the other party when the contract is concluded. It is irrelevant whether the provisions take the form of a physically separate part of a contract or are made part of the contractual document itself, what their volume is, what typeface is used for them and what form the contract takes. Contract terms are not standard business terms insofar as they have been negotiated in detail by the contractual parties.

(2) Standard business terms become part of a contract only if the user, when concluding the contract,

and if the other contractual party agrees to their applying.

(3) The contractual parties may agree in advance, while observing the requirements set out in subsection (2), that specific standard business terms are to govern a specific type of legal transaction.

Section 305a Incorporation in special cases

The following are incorporated, even without compliance with the requirements cited in section 305 (2) nos. 1 and 2, if the other contractual party agrees to their applying:

Section 305b Priority of individually agreed terms

Individually agreed terms take priority over standard business terms.

Section 305c Surprising and ambiguous clauses

(1) Provisions in standard business terms which in the circumstances, in particular with regard to the outward appearance of the contract, are so unusual that the party contracting with the user need not expect to encounter them, do not form part of the contract.

(2) Any doubts in the interpretation of standard business terms are resolved to the detriment of the user.

(1) If standard business terms as a whole or in part have not become part of the contract or are ineffective, then the remainder of the contract will remain in effect.

(2) To the extent that the terms have not become part of the contract or are ineffective, the contents of the contract are determined by the statutory provisions.

(3) The contract is ineffective if upholding it, even taking into account the alteration provided for in subsection (2), would constitute an unreasonable hardship for one party.

Section 306a Prohibition of circumvention

The provisions of this Division apply even if they are circumvented by other arrangements.

Section 307 Test of reasonableness of contents

(1) Provisions in standard business terms are ineffective if, contrary to the requirement of good faith, they unreasonably disadvantage the party contracting with the user. An unreasonable disadvantage also may arise from the provision not being clear and comprehensible.

(2) In case of doubt, an unreasonable disadvantage is to be assumed to exist if a provision

(3) Subsections (1) and (2) as well as sections 308 and 309 apply only to provisions in standard business terms on the basis of which arrangements deviating from legal provisions, or arrangements supplementing those legal provisions, are agreed. Other provisions may be ineffective by virtue of subsection (1) sentence 2 in conjunction with subsection (1) sentence 1.

Section 308 Prohibited clauses with the possibility of valuation

In standard business terms, the following in particular are ineffective:

Section 309 Prohibited clauses without the possibility of valuation

Even to the extent that a deviation from the statutory provisions is permissible, the following are ineffective in standard business terms:

Section 310 Scope of application

(1) Section 305 subsections (2) and (3), section 308 no. 1 and numbers 2 to 9, and section 309 do not apply to standard business terms that are used in contracts with a trader, a legal person under public law or a special fund under public law. Section 307 (1) and (2) nevertheless applies to the cases governed by sentence 1 insofar as this leads to the ineffectiveness of the contract provisions set out in section 308 no. 1 and numbers 2 to 8, and section 309; reasonable account is to be taken of the practices and customs that apply in business dealings. In the cases governed by sentence 1, section 307 (1) and (2) as well as section 308 nos. 1a and 1b do not apply to contracts in which the entire Award Rules for Building Works, Part B (Vergabe- und Vertragsordnung für Bauleistungen Teil B - VOB/B) in the version applicable at the time of conclusion of the contract are included without deviation as to their content, relating to an examination of the content of individual provisions.

(2) Sections 308 and 309 do not apply to contracts of electricity, gas, district heating or water suppliers for the supply of electricity, gas, district heating or water from the supply grid to special customers to the extent that the conditions of supply do not deviate, to the disadvantage of the customer, from ordinances on general conditions for the supply of standard-rate customers with electricity, gas, district heating and water. Sentence 1 applies accordingly to contracts for the drainage of sewage.

(3) In the case of contracts between a trader and a consumer (consumer contracts) the rules of this Division apply subject the following provisos:

(4) This Division does not apply to contracts in the field of the law of succession, family law and company law or to collective agreements and private-sector works agreements or public-sector establishment agreements. When it is applied to employment contracts, reasonable account is be taken of the special aspects that apply under labour law; section 305 (2) and (3) is not to be applied. Collective agreements and private-sector works agreements or public-sector establishment agreements are equivalent to legal provisions within the meaning of section 307 (3).

来源：gesetze-im-internet.de，Bürgerliches Gesetzbuch (BGB)，German Civil Code — English translation（Book 2）。逐字收录原文，未作修改。德国法律依《著作权法》§ 5 Abs. 1 UrhG 不受著作权保护。