After reading this blog, you will know more about being bound by general terms and conditions under Dutch law. Whether you act as a consumer or as a legal entity, we all have to deal with general terms and conditions. A consumer or a legal entity quickly becomes bound by the general terms and conditions of the user under Dutch law. Therefore, it is useful to know how exactly this bonding works, and in which cases a clause in the general terms and conditions can be waived.
When are you bound by general terms and conditions under Dutch law?
General terms and conditions are drawn up by a company with the intention of becoming part of (future) agreements. The person who uses the general terms and conditions is called the ‘user’. The party with whom the user of general terms and conditions enters into an agreement, is called the ‘other party’. General terms and conditions are almost always accepted by the other party without (consciously) explicitly agreeing to them. Dutch law states that another party is also bound by the general terms and conditions if, at the conclusion of the contract, the user understood or should have understood that he was not aware of its contents.
The other party is therefore almost automatically bound by the general terms and conditions, unless he objects to the applicability of the general terms and conditions. Also if the other party has not read the general terms and conditions, he becomes bound to them. In practice it will soon come down to the fact that you as the other party are bound by the general terms and conditions the moment you conclude a contract with the user.
As an opposing party, can I contest the general terms and conditions?
Despite the fact that the other party is quickly bound to the general terms and conditions, he has a number of options to challenge the applicability of the general terms and conditions. First of all the general conditions are voidable if the user has not offered the other party a reasonable opportunity to take note of the general conditions. This is called the user's duty to inform. The user has the legal obligation to make its general terms and conditions known to the other party before the contract is concluded. The user of the general terms and conditions has the obligation to take the initiative to offer the other party the possibility to take note of the general terms and conditions. It must be clear to the other party which conditions apply and the other party must be able to take note of their contents easily. It is not sufficient that the general terms and conditions are somewhere on the user's website and that the other party can find them with a search.
Secondly, general terms and conditions can be voided if they are unreasonably onerous for the other party. The law contains the so-called black and grey lists. These lists contain clauses that are (or may be) unreasonably onerous for the other party. The difference between the two is that a clause in the black list is automatically considered to be unreasonably onerous, so that it cannot be objected to by the user, whereas a clause in the grey list is presumed to be unreasonably burdensome. The latter means that the user still has the opportunity to offer proof of the contrary.
When speaking about an article which is unreasonably onerous (black list), you can think of an article that completely and unconditionally deprives the other party of the right to demand the performance promised by the user or an article that excludes or limits the other party's power to dissolve the contract.
Please note that the other party can only annul the specific articles of the general terms and conditions on the basis of the grey/black list if he is a natural person who does not act in the exercise of a profession or business, that is a consumer. If the other party is a company, this ground for annulment cannot be invoked. However, there is an exception to this in that some small businesses can still rely on the black/grey list if, for example, the contract cannot be significantly distinguished from a consumer transaction. One can think here of small associations or foundations, but also of contracts which lay outside the scope of the other party's professional activity. This is called the reflex effect of the black/grey list.
If you have any questions about general terms and conditions or contract law in general, please feel free to contact one of our lawyers.
This blog was posted on August 10, 2021.