Disclaimer and amendment reservations in product catalogues permitted

The Federal Court of Justice (BGH) had to decide on 04.02.2009 (VIII ZR 32/08) whether disclaimer and amendment reservations in product catalogues constitute General Terms and Conditions. Like the lower courts, the court rejected this and dismissed the action brought by a consumer protection association on the basis of the Act Against Unfair Terms of Contract (UKlaG).

The subject matter of the proceedings was the wording used by a mobile telecommunications company in a catalogue

"All prices incl. VAT! While stocks last! Changes and errors excepted. Illustrations similar."

In fact, there was an error in the catalogue, as the inclusive volume of a data tariff had been inadvertently stated as 100 MB instead of 30 MB.

The plaintiff thereupon claimed against the mobile telecommunications company for cessation. The aforementioned notices, in particular the disclaimer and amendment reservation, wouldGeneral Terms and Conditions (GTC)constitute, which would be ineffective. The use could therefore be prohibited pursuant to § 1 UKlaG.

The court's decision

The Federal Court of Justice rejected this and established that such notices do not constitute contractual terms within the meaning of §§ 305 ff. BGB. Rather, they have no independent substantive content and merely express that the information contained in the catalogue is non-binding until a possible conclusion of contract and may be corrected if necessary.

From acompetition law perspective(not subject matter of the proceedings!) however, a misleading act of unfair competition within the meaning of § 5 UWG is to be assumed, since the catalogue constitutesadvertising presents and contains inaccurate information in this respect. The defendant was warned about this in another matter and subsequently issued a declaration of desistance.