Most companies in The Netherlands use general terms and conditions. General terms and conditions are nothing more or less that stipulations that can be included standard in agreements. The Dutch Civil Code not only regulates the contents of general terms and conditions, but also how the other party is to be informed on the existence and contents of those conditions. It is simple to make general terms and conditions applicable to an agreement.
A Dutch company should offer its customers – especially in contacts with normal consumers – a reasonable possibility to become aware of the general terms and conditions. The starting point is that the general terms and conditions should actually be handed over when concluding an agreement /contract. If that is not possible in all reasonableness, in any case a reference to the place where the general terms and conditions can be found, the trade register or court registry where the conditions have been deposited, has to be included. It is essential, also for some smaller businesses in The Netherlands, that the general terms and conditions are actually handed over or a very clear reference is included. Otherwise, the terms and conditions can be fully or partially annulled by a Dutch lawyer.
One of the main rules for the contents of general terms and conditions is that these cannot pose an unreasonable burden on the customer. This means that you cannot, just like that, exclude all risks or contractually delete certain statutory rights of the customer. The Dutch law states that, in an agreement between a company and a consumer, certain stipulations are already considered onerous in advance, or at least are suspected of posing an unreasonable burden. We call this the grey list and the black list. If the case goes to trial, the user of the general terms and conditions (the owner of the business) has the possibility to try to refute this suspicion. The black list contains stipulations that are unreasonably onerous by definition, and thus not open for discussion. An example of a grey stipulation is the exclusion of the power to set off payments. An example of the black stipulation is the exclusion of the right to demand the performance promised by the business (the so-called right to performance). In practice, black and grey stipulations are very often included in general terms and conditions. If a stipulation is unreasonably onerous, that stipulation can be annulled. Annulment can take place by extrajudicial statement or by a court ruling.
Many businesses in The Netherlands use general terms and conditions in contacts with their customers. But the legal requirements for those conditions are often underestimated. It is essential in drawing up general terms and conditions, to take into account how your company does business, and what its customer base is. Drawing up general terms and conditions is customized work. General terms and conditions can include convenient stipulations that can prevent you from being at a disadvantage in disputes with customers.
Our contract lawyers are not only very experienced in drawing up general terms and conditions, but will also litigate on their clients’ behalf, if necessary. Our lawyers are are fully committed to our clients’ cases, work in a horizontal organization and offer competitive fees. Please contact our law firm for a meeting, free of charge and obligation.