In its ruling of 11 July 2023 (4A_372/2022) , the Federal Supreme Court dealswith the interpretation of clauses of general terms and conditions (GTC) within a contractual relationship relating to software solutions. The judgement is surprising, as the Federal Supreme Court carries out a GTC review on its own initiative and also because it declares two clauses invalid and consequently also applies the unusual nature rule in B2B relationships.
The facts of the present Federal Supreme Court decision describe the dispute between an IT company and its customer. As part of their collaboration, the parties concluded several contracts relating to the development, provision and maintenance of a software solution by the IT company, each of which was supplemented by specific general terms and conditions of the IT company.
The customer finally cancelled the contracts without notice on the grounds that the IT company had significantly exceeded the budget and the software had security vulnerabilities. It also asserted claims for damages totalling CHF 3 million. The IT company in turn filed a lawsuit for payment of unpaid invoices totalling CHF 90,000 and a contractual penalty of CHF 110,000, among other things.
Both of the IT company’s claims were based on the agreed Art. 6 of the GTC. This stipulates that invoices from the IT company must be objected to within 30 days by registered letter with acknowledgement of receipt, otherwise the invoice is deemed to have been approved. The customer is then obliged to pay a contractual penalty if it terminates the contract for any reason whatsoever, provided that the IT company is not at fault.
The customer contested the IT company’s claims up to the Federal Supreme Court, but never questioned the validity of the relevant GTC clause in light of the unusual nature rule. It is therefore all the more astonishing that the Federal Supreme Court carried out the GTC review of Art. 6 of the agreed GTC on its own initiative.
First of all, the Federal Supreme Court points out that standardised clauses that are applicable to a large number of contractual relationships have no normative value. Such clauses must be expressly included in the agreement in order to be valid. The court then refers to the unusual nature clause, which states that the blanket approval of GTCs does not apply to unusual clauses, the existence of which was not specifically pointed out to the weaker or commercially inexperienced party. According to the principle of trust, the author of GTC clauses must expect that his inexperienced contractual partner will not agree to such clauses that are unexpected or atypical.
Although the application of the unusual nature rule to B2B settings is not excluded per se, its purpose is designed for constellations in which a weaker and inexperienced party is to be protected from unusual clauses. As a rule, this may apply to relationships between companies and consumers or employees. In the present judgement, however, the Federal Supreme Court emphasises that the unusualness rule is not limited to cases in which a strong and weak party face each other. Rather, it is sufficient if the contractual partner of the GTC user is not familiar with a particular industry and its practices. A clause that is customary in an industry may appear unusual to someone who does not operate in that industry.
In the present case, the Federal Supreme Court considers Art. 6 GTC, according to which the customer can object to the invoiced services within a maximum of 30 days by registered letter with acknowledgement of receipt, to be unusual. It significantly impaired the customer’s legal position. If she does not respond within the prescribed period, she will be forced to pay the invoices deemed to be recognised. This regulation thus deviates considerably from the statutory system, which at most prohibits the obvious abuse of a right and does not provide for such a short objection period under threat of forfeiture of rights. The Federal Supreme Court also considers the second provision in Art. 6 GTC, according to which the customer owes lump-sum compensation in the event of cancellation, to be unusual. This is because it also significantly impairs the customer’s legal position and deviates greatly from the statutory provision.
The Federal Supreme Court came to this conclusion because the IT company specialised in IT and was therefore familiar with the special features of IT contracts, whereas its customer only required software for the operation of its business. As there is no indication that the customer was made aware of the unusual clauses in Art. 6 GTC in any way, these cannot be held against the customer. Consequently, the present decision also shows that the hurdle of unusualness is not unattainably high, especially since the Federal Supreme Court also took into account that the customer, although not from the IT sector, was at least a business customer.