The majority of traders in practice encounter the use of terms and conditions when concluding contracts, both in relation to end consumers and in relation to suppliers. Among some traders, there prevails a notion that once they have drawn up some terms and conditions, their legal relationships are governed by them. However, for terms and conditions to actually become part of the contractual arrangements between a trader and a third party, certain prerequisites must be met. With regard to these prerequisites, it is then necessary to distinguish between cases of use of terms and conditions in commercial-obligatory relationships (e.g. the relationship between a seller and his supplier) and in civil law relationships (e.g. the relationship between a seller and a consumer).

The possibility of using terms and conditions as part of contractual arrangements is expressly mentioned only in the case of commercial-obligatory relationships. According to the provision of Section 273 of the Commercial Code (obchodní zákoník), part of the content of a contract may also be determined by reference to general terms and conditions drawn up by professional or interest organisations or by reference to other terms and conditions which are known to the parties concluding the contract or attached to the proposal. The cited provision thus distinguishes between two types of terms and conditions. Firstly, these are general terms and conditions drawn up by professional or interest organisations. The Commercial Code does not specify these organisations more precisely; however, by interpretation it may be inferred that they should be a certain guarantor of the professionalism and legal quality of the conditions created. Secondly, these are terms and conditions drawn up by other entities (including, for example, one of the parties to the proposed contract), which are used more frequently in practice. Such terms and conditions must be known to the parties (e.g. from previous mutual business activities of the parties) or must be attached to the contract.

The Civil Code (občanský zákoník) does not expressly address the issue of terms and conditions; however, even under the regime of the Civil Code it is possible for terms and conditions to form part of contractual arrangements (see the provision of Section 53a paragraph 3 of the Civil Code). Particularly in consumer relationships, however, it may be considered at least appropriate for terms and conditions to be attached to the contract.

The technical implementation of familiarising the consumer with the terms and conditions or their attachment to the contract in the case of distance contracts concluded by electronic means (contracts concluded in on-line sales) should, within the framework of legal certainty of both parties, be such as to enable the capture and the possibility of proving the content of the terms and conditions at the time of conclusion of the contract, as well as the fact that the conditions were attached to the contract or that the other party was familiarised with them. In this connection, it may be mentioned that for the area of consumer contracts, the Civil Code, in accordance with Community regulation, expressly provides that general terms and conditions must be provided to the consumer in a form which enables archiving and reproduction.

For practice, we would see as the most suitable solution the case where the entire wording of the terms and conditions is placed at the end of the order form (e.g. below the “shopping basket”) and the recipient expresses consent to their content in the same manner as to the content of the contract. Less satisfactory is the solution where only a hypertext link to the wording of the terms and conditions is placed at the end of the order form and the consumer expresses consent to their wording (e.g. by ticking a so-called checkbox), without the conditions necessarily having to be displayed to him. With regard to the “admissibility” of this variant, it will be necessary to await binding decisions of Czech courts (abroad this question has already been addressed on several occasions).

This text was translated from Czech to English using an AI translator.