General business terms and conditions (hereinafter “GBTC”) are a standard part of business contracts that supplements the content of these contracts. In practice, situations may arise in which GBTC are changed by their author, often unilaterally.

As a result, in its judgement of 27 February 2013, ref. no. 23 Cdo 1098/2012, the Supreme Court defined in what manner and under what conditions these GBTC can be changed.

The case before the Supreme Court involved two entrepreneurs who had concluded a written contract that referred to GBTC. The contract specified it could only be changed by written amendments, however it did not expressly specify the manner in which general business terms and conditions could be changed.

Although GBTC were changed by written amendment in the above case, this amendment did not identify the contractual parties and was only signed by one of the parties. The amendment included a provision stating that if the other party did not express disagreement with the changes in the prescribed period, these changes would become effective on expiry of this period.

The Supreme Court concluded that where the written form is agreed for changes in a contract in business relations, a bilateral written amendment must be concluded to affect such a change. Unless specified otherwise in the contract or GBTC themselves, this conclusion also applies for GBTC and a unilateral change of these GBTC is not permissible. A bilateral amendment of GBTC must also be sufficiently specific – it must include identification of the contractual parties and their will to conclude a written amendment to the concrete contract must be evident. The fact that the other party agrees with such an amendment and acts accordingly is therefore not sufficient for the validity of such an amendment.

However, it is important to emphasise that that Supreme Court concedes the possibility of a unilateral change of GBTC, but such a possibility must be expressly agreed in the contract or GBTC.

The conclusions of the Supreme Court can therefore be summarised by saying that a unilateral change of GBTC is only possible if such a change has been agreed in the contract or the GBTC themselves. If this is not the case, GBTC (in relation to a concrete contractual partner) can only be changed in the manner prescribed for a change of contract. In the case of contracts requiring changes in written form, GBTC can only be changed in the form of a written amendment that duly identifies both of the contractual parties and the contract being amended by the change of GBTC and this amendment must be signed by both contractual parties.