Inclusion of Ts&Cs
Under Czech law, Ts&Cs can become the part of the agreement by an inclusion through the reference to one’s Ts&Cs, attachment to the agreement or familiarization with the Ts&Cs.
In accordance with the judiciary, the Ts&Cs do not need to be signed. However, some commentators state that the express consent to familiarization is necessary whilst the mere reference is not enough. On the other hand, there are opinions of other experts asserting that it is impossible to secure the familiarization every time and therefore the reference is sufficient in the case that it was reasonable to presume that the other party familiarized with the Ts&Cs. The wording of the Czech Civil Code confirms the latter.
The reference to the Ts&Cs needs to be provided before the conclusion of the agreement, not later. Therefore, a reference on shipment documents or invoices is generally not sufficient for a valid inclusion of Ts&Cs.
It is not necessary to include the Ts&Cs’ actual wording. However, if so, then the condition of familiarization is met.
According to some commentators it is sufficient if the hyper-text reference is made to a homepage provided that the agreement is concluded online. These commentators further state that the mere reference to homepage is not considered as the inclusion.
The regulation under the CISG is very similar to the Czech regulation.
The parties must expressly or impliedly agree to the inclusion of the Ts&Cs in the contract, otherwise the Ts&Cs would be invalid.
The party being provided with Ts&Cs must have a reasonable opportunity to take notice of the terms; a party is deemed to have had a reasonable opportunity to take notice of the standard terms (i) if the terms are attached to the contract or printed on the reverse side, (ii) if the terms are available to the parties in the present of each other at the time of negotiating the contract, (iii) or in the electronic communications if the terms are made available to and retrievable electronically by that party and are accessible to that party at the time of negotiating the contract.
The Ts&Cs cannot be incorporated after the formation of the contract.
In case of reference to the inclusion of the Ts&Cs, the reference and the Ts&Cs must be clear to a reasonable person; the reference to the inclusion and the Ts&Cs are deemed to be clear if they are readable and understandable by a reasonable person and are available in a language that the other party could reasonably be expected to understand.
Battle of Forms
Under Czech law, with effect from 1 January 2014, the Last-Shot Rule was replaced by the Knock-Out Rule in the new Civil Code. On this basis any contradicting provisions of either of the parties’ Ts&Cs will not apply (provided that the respective agreement was concluded as of 1 January 2014).
The application of the Knock-Out Rule cannot be excluded in Ts&Cs, however, it can be expressly excluded in a contract.
From a Czech law perspective, under the CISG, the majority of legal commentators favour the Last-Shot Rule (although there is no uniform legal opinion regarding the Battle of Forms situation). This is also partially supported by one decision of the Constitutional Court, which, however, concerned a rather specific case. Lately the situation seems to be changing in favour of the Knock-out Rule (at least among legal commentators). However, a clear court decision is yet to be rendered for the Czech Republic.
CMS Cameron McKenna v.o.s.
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