Inclusion of Ts&Cs
Under Hungarian law, Ts&Cs are deemed to be included in the agreement if the party applying Ts&Cs made them available to the other party prior to the conclusion of the agreement and such Ts&Cs were accepted by this other party. In practice, in order for Ts&Cs to be deemed as made available to the other party prior to the conclusion of the agreement, it is sufficient if reference to one’s Ts&Cs is made in any documents prior to the conclusion of the agreement. Acceptance of the Ts&Cs may be express or implied. In case of agreements concluded by electronic means, the party providing the electronic means shall make available its Ts&Cs in a way that allows the other party to store and reproduce them.
Notwithstanding the above general rule, terms of Ts&Cs significantly differing from the applicable legislation or from the standard contractual practice (except for Ts&Cs in conformity with the ongoing contractual practice / a previously established term between the parties) shall only become part of the agreement if the other party is expressly informed of such terms and if such other party expressly accepted them after being informed thereof.
In case of B2C agreements, any terms of Ts&Cs entitling a company to demand extra payments in addition to the consideration due for the fulfilment of the primary obligation of the company under the agreement shall only become part of the agreement if the consumer expressly accepted such term after being explicitly informed thereof.
From a Hungarian law perspective, under the CISG, the situation equals the situation described for national law. No relevant court practice is available in this regard.
Battle of Forms
Under Hungarian law, it is necessary to distinguish between individually negotiated contractual terms and Ts&Cs.
If contractual terms are individually negotiated:
- if the terms differ from each other on material issues, there is no agreement;
- if the terms differ from each other only on non-material issues, the Last-Shot Rule applies (except if the offer explicitly stated that it can only be accepted with unchanged terms or the party making the offer objects to the differing terms without delay).
In case of general terms and conditions:
- if the Ts&Cs are not contradictory both Ts&Cs will become part of the agreement;
- if the Ts&Cs differ from each other only on non-material issues, the Knock-Out Rule applies;
- if the Ts&Cs differ from each other on material issues, the agreement is not established.
From a Hungarian law perspective, under the CISG, the major legal commentators support the Knock-Out Rule. There is no publicly available case law on this issue.