When are general terms and conditions binding on the other party?

They bind the other party when they were accepted and the user gave a reasonable opportunity to take notice of them before or at conclusion of the contract, for example by handing them over or sending them with the offer.

What happens in a battle of forms where both parties use their own terms?

Under article 6:225(3) BW the first-referenced set of terms prevails, unless the second party explicitly rejects the first set in its acceptance.

Can a clause in general terms limit liability to zero?

Towards businesses it is possible if the clause is not unreasonably onerous given the circumstances. Towards consumers, a full exclusion of liability for own fault is on the grey list and presumed unreasonably onerous.

How can a party destroy the binding effect of the other's general terms?

By explicitly rejecting them in the acceptance, or by invoking the destruction rule under BW 6:233 if the other party failed to give a reasonable opportunity to take notice. An individual term can also be voided if it is unreasonably onerous.

Do general terms and conditions posted on a website bind the counterparty?

Yes, if the counterparty was referred to the website before or at the time of contracting and the terms were readily accessible. A hyperlink in an email or on a quotation form is generally sufficient for B2B contracts.

General terms and conditions

Standardised pre-formulated clauses a party uses across many contracts, governed by strict Dutch rules.

Definição

General terms and conditions (algemene voorwaarden) are standard clauses drafted for repeated use that are not individually negotiated. Dutch law subjects them to a special regime: the user must give the other party a reasonable opportunity to take notice of them, and unreasonably onerous clauses may be void or voidable. Articles 6:236 and 6:237 BW contain a black list and grey list of clauses that are presumed unreasonable towards consumers.

Exemplo

A supplier emails its general terms with the quotation; because the buyer could reasonably take notice of them, an exoneration clause in those terms is enforceable.

Porque é um risco para a empresa

Businesses that use general terms and conditions without ensuring they were properly presented risk having key clauses, including liability caps and exclusions, struck down as unenforceable. In a battle of forms, using terms without understanding the Dutch first-reference rule can result in the counterparty's terms governing instead. Outdated general terms that no longer reflect current law or the company's actual services create hidden exposure.

Como gerir

Always attach or link your general terms and conditions to your offer, order confirmation or contract so you can demonstrate the other party had a reasonable opportunity to review them.
Review your terms periodically to check they still comply with current law and reflect your actual products and services.
When dealing with a counterparty who sends their own terms, explicitly reject those terms in your acceptance if you want your terms to govern.
For B2C contracts, audit your terms against the black and grey lists in articles 6:236 and 6:237 BW before using them.

Referências jurídicas

Salvo indicação em contrário, as referências remetem para o direito neerlandês (Burgerlijk Wetboek, o Código Civil neerlandês); os instrumentos da UE, como o RGPD, aplicam-se em toda a UE. Esta é informação geral, não constitui aconselhamento jurídico. Outras jurisdições tratam estes conceitos de forma diferente. Verifique o texto em vigor e a sua situação com um advogado qualificado.

Perguntas frequentes

Questões comuns sobre este termo.