They do not bite. They do not chase. But they stay. Terms and conditions that re-appear in new contracts, even though the legislator buried them years ago. Standard clauses that were struck down by the Federal Court of Justice two decades ago and now rise again, unchanged, in the small print of a subscription agreement. I call them the zombies of consumer law.
The classic zombie is the automatic-extension clause in a gym contract. "The contract extends automatically by a further twelve months if it is not terminated three months prior to expiry." It was, until recently, lawful. Then the legislator introduced the so-called "button-solution" and the one-month maximum for the notice period in consumer contracts. And yet, six months after the new rule came into force, I signed a contract for a fitness studio on behalf of a client's young daughter — the contract contained the old clause. Verbatim.
Nobody at the studio intended to cheat anyone. The contract template had simply been in use for years. The manager in the back office used the same template that their predecessor had used in 2016. A lawyer had once reviewed it and probably had not looked at it since. And so, unchanged, it was offered to a new generation of customers who had no reason to question a perfectly printed form.
The good news is that the zombie is usually harmless. Under German law, a clause in standard terms that contradicts current statutory law is simply invalid. It is not enforceable. The customer can simply terminate the gym contract at one month's notice, despite the fine print. But the phrase "he can, if he knows" is the Achilles' heel of consumer protection. Most customers do not know. And a contract that cannot be enforced in theory can still be paid for in practice.
Zombies sit in the fine print of many, many ordinary contracts. Mobile-phone contracts. Subscription boxes. Magazine subscriptions. Car leases. Tenancy agreements. Those that I come across as a lawyer — usually only because the client came to me when the contract had already become problematic — are almost always beatable. Sometimes with a polite letter, sometimes with a firm letter, sometimes with a court. Rarely with a fight that lasts more than a few weeks.
But, as always with consumer law, the value is not in the single case. The value is in the readiness of citizens to, for once, read the fine print carefully enough to recognise a zombie. And then — instead of shrugging — ask for help. My profession is frankly shaped by the fact that a large share of the disadvantageous clauses that actually cost consumers money would not survive five minutes of scrutiny. If ten percent more consumers scrutinised five minutes more, a lot of those clauses would disappear on their own. The providers are not, in most cases, villains. They are simply lazy.
The next time you sign a multi-page contract for a small amount of money, pause. Read the last page. Spot the clause that sounds like a polite threat. And, if you must, write us.