Comment by NickHoff
3 years ago
I'm aware of these laws but I've always wondered - what if a German startup really does want to operate in a new and "unexpected" way, but doesn't want to trick their customers? They put the unexpected stuff clearly on their website, not buried in the ToS. I don't see any ethical problem with that - people can make an informed choice about whether they want to do business with the company. BUT - it would still have to be in the official ToS and now that unusual stuff would be void.
Doesn't this law prevent startups from developing innovative business models even when they are being upfront about it?
Assuming it’s not an explicitly forbidden clause, from the law [0] translated by deepl:
> (1) Provisions in general terms and conditions are invalid if they unreasonably disadvantage the contractual partner of the user contrary to the requirements of good faith. An unreasonable disadvantage can also result from the fact that the provision is not clear and understandable.
So if the novelty of the startup is an unreasonable disadvantage to the customer, it would be illegal. Which sounds good to me.
[0] https://www.gesetze-im-internet.de/bgb/__307.html
IANAL, but surely if it's a core part of the business and they plainly explain it on the front page, that wouldn't be considered unexpected.