Inclusion of Ts&Cs
Under Bulgarian law, in commercial contracts, the Ts&Cs are binding for the other party, if the latter accepted them in writing. The written form of acceptance is considered to be complied with, if the acceptance is given through electronic signature too. Confirmation by email should be considered as a valid acceptance as well, however, the authenticity of the acceptance may be challenged and difficult to prove.
More importantly, though, if the other party is a merchant / a commercial entity and it was aware of the Ts&Cs or was obliged to know them and has failed to object to them immediately, then the Ts&Cs are also considered binding for this other party. Meaning, that if the party offering its Ts&Cs has referred to a website where these could be found, the other party-merchant should be bound by the Ts&Cs, unless it explicitly object to them. The Ts&Cs could be referred in any type of document(s); the actual contract, an invoice serving the purpose of a contract, etc.
Please note that when the validity of a transaction requires the transaction to be concluded in writing, the Ts&Cs shall be binding upon the other party only if the latter received them upon execution of the transaction.
The topic of arbitration clauses included in Ts&Cs is a bit more peculiar. The latest case law adopts the understanding that pointing of Ts&Cs on a website shall not be sufficient for considering the other party bound by an arbitration clause incorporated in Ts&Cs. Also, the rule that if the other party fails to object to them immediately, then the arbitration clause shall be considered binding for this other party, shall not be valid.
As a general rule, in the event of discrepancies between what was agreed upon by the parties in the contract and the Ts&Cs, the provisions of the contract shall prevail.
From a Bulgarian law perspective, under the CISG, the same situation as un-der national law applies.
Battle of Forms
Under Bulgarian law, there is no settled relevant case law regarding the Battle of Forms. Only where the parties’ actual common intention cannot be established do the legal commentators seem to favour the Knock-Out Rule, including in the contract only the terms upon which both parties agree. However, there is a statutory presumption regarding commercial transactions that Ts&Cs become binding upon the other party if it was aware of such Ts&Cs and did not object immediately. The non-mandatory statutory terms (i.e. the Commerce Act of 1991 and the Contracts and Obligations Act of 1950 as well as the Private International Law Code of 2005 re choice of governing law) will apply to fill in the gaps, if any, in the agreed contract.
From a Bulgarian law perspective, under the CISG, the same situation as under national law applies.