terms-of-service germany
Correct spelling in ToS
<p>May I correct spelling issues in my ToS without prior notification?</p>

<hr>

<p>According to <a href="https://dejure.org/gesetze/BGB/308.html" rel="nofollow noreferrer">§308 (5) BGB</a> I need a "Fingierte Erklärung" (fictitious statement) with a time limit for the user to acknowledge and I need to inform every user of the change.</p>

<p>For a spelling correction this feels like overkill. Is there any law that governs this, or do I have to go the way described by <a href="https://dejure.org/gesetze/BGB/308.html" rel="nofollow noreferrer">§308 BGB</a>?</p>

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<p>This question is <strong>not</strong> about the fact that one should proofread the ToS. I know that.</p>

<h2>Leave it alone.</h2>

<p>If the spelling mistake is simply that then if you ever need to rely on the ToS in court it won't matter: a court will ignore spelling errors if they are unambiguous. However, if you change the ToS, even in a relatively minor way, then you would need to comply with the law and this seems like hard work. Fix the spelling the next time you actually need to change the ToS for some other reason.</p>

<p>Broadly speaking, a mistake in a contract can either be <em>operative</em> or <em>non-operative</em>. Operative mistakes change the understanding of the contract by one or more parties, while non-operative mistakes do not affect the understanding. Unfortunately, classifying a mistake is subjective and usually requires independent adjudication. What you're asking to do is (a) unilaterally correct a mistake because you believe the mistake to be non-operative and (b) keep this edit silent. This is risky.</p>

<p>I'm not an authority on German contract law, but <a href="https://sites.google.com/site/349924e64e68f035/issue-6/mistake-over-the-terms-of-a-contract-a-comparative-analysis-of-england-france-and-germany" rel="nofollow noreferrer">a comparative analysis of mistake handling in contract law in England, France, and Germany</a>, shows that generally England is more <em>objective</em>, France more <em>subjective</em>, and Germany somewhere in between. Specifically (emphasis and link mine):</p>

<blockquote>
  <p>Symbolising what the German system describes as <a href="http://thelawdictionary.org/falsa-demonstratio/" rel="nofollow noreferrer"><em>falsa demonstration [sic] non nocet</em></a>, Article 5:101 of the PECL represents what the different jurisdictions follow in deciding that <strong>a contract will be interpreted on terms according to parties common intentions rather than literal words</strong>. Article II 8.101 (2) of the DCFR also supports this, but it does go beyond the scope of rectification in England from suggesting a contract should be upheld if an offeree actually intends to obtain what the offeror declared but knew a mistake was made in the offer.</p>
</blockquote>

<p>If Germany does rely on <em>falsa demonstratio non nocet cum de corpore constat</em>, then you could <em>probably</em> change it without notification because the change is non-operative. However, consider: your customers may view silent changes to ToS, no matter how innocuous, as surreptitious.</p>

<p>The safest moves are either (a) leave it alone or (b) change with notification. Personally, I would queue up all minor changes and publish all them at once when there's sufficient reason to warrant the effort of notification (perhaps when a major change comes along, or once a year).</p>

<p>There seems to be some confusion on how to apply the said regulation (§308 Nr. 5 BGB) in this case. The given article is a part of the <em>Recht der Allgmeinen Geschäftsbedingungen</em> - generally abbreviated AGB - (roughly translating to "law of general terms and conditions") and to answer the question it is necessary to understand its meaning and context. So it's worth giving a quick overview of what that actually means.</p>

<p>Every pre-formulated contractual obligation, especially general terms and conditions, which is not subject to individual contract negotioation, is subject to the AGB law. AGB law imposes strict limitations on these terms to mitigate power imbalances between large corporations and consumers. These limitations are quite extensive and it usually requires a specialst lawyer to carefully craft AGB that would stand the test of a court.</p>

<p>Creating valid AGB has two aspects which have to be clearly separated:</p>

<ol>
<li>The terms and conditions need to become a part of the contract. There are quite a few things you can do wrong with that and if you do, your AGB will not be part of the contract and thus they won't apply at all. This aspect is regulated in §§ 305-305b BGB.</li>
<li>Even when the terms and conditions become a part of the contract, there are strict regulations regarding their content (<em>Inhaltskontrolle der AGB</em>). This is in general the most tricky part which requires experts to do right. The regulation you refer to, § 308 Nr. 5 BGB belongs to that area.</li>
</ol>

<p>Having said that, what you do is to apply a regulation of the second part to an issue regarding the first part, namely how changes to the ToS can be communicated in a way that they are valid. It basically means that you are using § 308 Nr. 5 BGB wrong.</p>

<p>A quick information what § 308 Nr. 5 BGB is actually meant for: According to German law silence can never be a legally binding statement. If a contract is proposed to you and you don't make <em>any</em> statement, there will be no valid contract, because you have not agreed to it. § 308 Nr. 5 BGB forbids overriding this rule in a pre-formulated contract, except in a few specific cases.</p>

<p>You however want to do changes to your AGB <em>after</em> they have been accepted by your customers. To make these kind of retrospect changes is a difficult issue by itself and - unless you have provided court-proof regulations in your AGB to allow that - might not be even possible at all. And even if it is possible, you <strong>must</strong> communicate all changes to your customers, even if they are mere spelling corrections. If you don't, the old reulations will continue to apply.</p>

<p>Whether your changes will actually have an effect on your contract can not be evaluated unless you provide the specific contractual clause. Spelling mistakes that don't create ambuguity or give the clause a new meaning might not need correction. But you should be aware that sometimes even little differences in a contract can make the difference between winning and and losing a disputed case, especially when they are subject to AGB regulations.</p>

<p>The best tip I can give you is to seek advice by a lawyer specializing in AGB law to evaluate the changes in your contract and whether you are able to apply them to your existing contracts.</p>
