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Covid-19: Ineffective clauses in the general terms and conditions of trade fair organisers – Obligation to refund?

The current restrictions on public life are leading to serious economic losses on the part of trade fair organisers and the participating industry. The Institute of the German Trade Fair Industry (Institut der Deutschen Messewirtschaft) is already predicting macroeconomic damages of up to 5.6 billion euros, calculated on the basis of the decisions made up to 18 March 2020 to reschedule trade fair events: Due to the COVID-19 measures, which have been provisionally extended until 20 April 2020 and the restrictions that will probably apply beyond that date, trade fairs throughout the entire year 2020 will very likely be affected by the COVID-19 pandemic.

Occasionally, trade fair organisers and other operators of major events attempt to pass on at least part of the economic risk associated with the cancellation of events to their participants. Thus, in our daily practice, we repeatedly see General Terms and Conditions (GTC) which limit or even attempt to exclude the right to withdraw from the contract (§ 326 Para. 5 German Civil Code (BGB)) and the exemption from providing any consideration (§ 326 (1) BGB) in the event of force majeure or other impossibility. Such clauses do not usually withstand a content control in the sense of §§ 307 ff. BGB. Thus, the principle applies that clauses which preclude the reimbursement of advance payments or other trade fair fees in the event of the impossibility to render performance are invalid in accordance with § 307 (1) BGB. Such clauses constitute an unreasonable disadvantage within the meaning of § 307 (1) BGB. This applies to both the B2B and B2C sectors.

The companies concerned should therefore carefully examine the contracts concluded. If the GTC used contain such clauses, they are most likely void. Despite such contradictory clause, the companies concerned are therefore entitled to demand a refund of the advance payment made. In order to avoid legal disputes, efforts should be made to amend or delete such clauses from future contracts from the very beginning. This increases legal certainty and avoids costs in the later enforcement of claims.

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Tobias Matschke



Certified Specialist Lawyer for Intellectual Property