Terms and conditions clauses: Would the Disney case also be possible in Germany?

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The case caused head-shaking, indignation and astonishment: the Disney Group wanted a Florida court to dismiss the lawsuit of a man whose wife died of anaphylactic shock in a Disney-owned restaurant despite multiple warnings about her allergy. The reasoning showed that the devil is often in the detail.

The widower had agreed to the terms and conditions for a trial subscription to the Disney+ streaming service and the purchase of Disney tickets. These state that disputes must be referred to arbitration. Following a wave of criticism, the company withdrew its application to have the case dismissed at the beginning of the week.

How far-reaching can general terms and conditions be?

Would such a case also be possible in Germany? No, says Markus Hagge, legal expert at the consumer advice center in Lower Saxony. At the very least, this approach would not be successful. Because if German law is applicable, the German Civil Code applies. " Paragraph 309, section 14, regulates precisely this case." Accordingly, a clause stating that "the other party to the contract may only assert its claims against the user in court after it has attempted an amicable settlement in an out-of-court dispute resolution procedure" is invalid. Under German law, the clause to which Disney referred in its GTCs would therefore be inadmissible. "The GTC cannot exclude the contractual partner from turning to state courts," explains Hagge.

Place of jurisdiction is decisive

However, even those who conclude a contract in Germany do not always benefit from these provisions. "What counts is the place of jurisdiction that applies according to the terms and conditions," says the consumer law expert. "A company can refer in the terms and conditions to a specific law that applies to the contract and the GTC - but even that is not always effective."

For example, it plays a role whether the contractual partner would have the opportunity to appear in court in the event of a dispute - and whether it is reasonable to travel around the world to do so. If the clause is effective - which, in case of doubt, is up to a court to decide - it is irrelevant which country the person comes from. For example, US law could also apply to a person from Germany.

Clauses that apply for longer

In principle, GTCs are part of a contract, such as a purchase or a service. Accordingly, the GTC only apply for as long as the contract is valid. If this ends, the T&Cs are also invalid. "Nevertheless, the principle of contractual freedom applies, so a clause could also apply beyond the end of the contract," explains Hagge. "However, this must be clearly stated in the terms and conditions."

In addition, the German Civil Code (BGB) excludes any undue disadvantage to a contractual partner (section 307). Such an agreement is more common in employment contracts, for example, where there is sometimes a duty of confidentiality that extends beyond the duration of employment.

Clauses must be expectable

Companies do not have absolute freedom of action even beyond the excluded points. This is because there are also regulations in the German Civil Code for unusual clauses. " Paragraph 305 c of the BGB argues with common sense," explains Hagge. Paragraph 1 states: "Provisions in general terms and conditions that are so unusual according to the circumstances, in particular according to the external appearance of the contract, that the user's contractual partner need not expect them, shall not become part of the contract." This means that if a clause is so unusual that it goes beyond the ordinary, it does not apply.

The legal expert explains: "This is a very broadly worded provision which, in the event of a dispute, will ultimately be decided by a court using common sense." An argument that can also be found in US law. Harvard professor Oren Bar-Gill also categorized the Disney case accordingly: The court would have to decide whether such a far-reaching interpretation could be expected that the waiver of action in the Disney+ subscription would also apply to the lawsuit after the woman's death.

Read the terms and conditions, even if it's pointless

Hagge urges people to read not only the contract, but also the terms and conditions. "Even if nobody has time for this, I can only generally advise them to do so," he emphasizes. Consumers should at least look at the contract and see which points are regulated in more detail by the GTC. "You should pay attention to whether withdrawal is restricted, what the payment modalities are, for example whether third parties are involved as payment service providers, and ask yourself whether you want to give these companies your own data. It is also important to consider whether liability is limited or even excluded," he adds. "The German Civil Code already puts a few obstacles in the way of users, i.e. companies, but it sometimes happens that companies take the risk."

If you notice anything that seems strange or even violates the BGB, you should not sign the contract and look for another provider, recommends Hagge. "You shouldn't rely on the fact that you'll get your rights." It is often large companies that are well-positioned with legal departments and adapt their general terms and conditions in accordance with current law. "They will have thought about this."

Hagge also includes black sheep who rely on getting away with infringements. "Sometimes business mathematicians calculate that a certain economic risk is worthwhile." The German Civil Code regulates the conditions for general terms and conditions in detail, but some formulations are vague. "The answer to what constitutes a surprising clause can certainly be surprising," says the legal expert.

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