Terms and choice of jurisdiction in Spain

For the inclusion of general terms and conditions  in legal relations between German companies, it is usually sufficient if reference is made to the validity of the terms and conditions and it consists of the possibility of the acknowledgement of the other party.

In Spain, the conditions should be indicated in the language of negotiation. In the case of the customer or supplier located outside of Spain, they must be advised of the terms and conditions in their dominant language. In addition, the terms and conditions should be (demonstrably) transferred.

As the use of conditions in Spain is also much less common than in other countries, their effective participation is therefore particularly important.

If there is no framework agreement between the parties, central schemes such as the choice of law or of jurisdiction are often included solely in the conditions. Therefore, the choice of the competent court is determined in accordance with the terms and conditions.

In Germany alone- as in customary practice- the unquestioning reference to terms and conditions is available on the Internet or on request from the buyer/seller. The information can be indicated during contract negotiations as well as in the contract (but not solely on the invoice).

In Spain, conditions must be physically transferred

In Spanish contracting parties, the reference to terms must be in the negotiating language (which is normally Spanish or English). Furthermore, it is necessary that the terms be transferred or at least there be an agreement to apply another country’s law. This will often be omitted in practice. Evidence of effective handover can be controlled best by a short confirmation in a sleek framework agreement. On this occasion it can also be efficient, but not effective, if the agreed limitations of liability are negotiated in the terms and conditions.

This article is not considered as legal advice

Karl H. Lincke

As an Abogado & Rechtsanwalt, Karl H. Lincke is a Partner at Mariscal Abogados and specialises in M&A, Company law, TMT law and Real Estate law. Working languages: Spanish, German and English. For any further enquiries please Contact us