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    How do general terms and conditions work and what rules apply to them?

    General terms and conditions are the legal foundation of every business relationship. But when are these conditions valid? How do you make them applicable? And what rules govern the filing of terms, the black and grey lists, and the unreasonableness test?

    Everything about general terms and conditions

    In our factsheet, you can read how to draft and apply general terms and conditions correctly from a legal perspective. You will discover how the three-step rocket works: applicability, provision, and content review. You'll also learn which rules apply and which pitfalls to avoid. This guide is useful if you want to know what is needed to use your terms and conditions legally and clearly.

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    General terms an conditions

    What are general terms and conditions?

    In short, a clause between parties qualifies as a general condition if it meets the legal definition. The definition of 'general terms and conditions' in the Dutch Civil Code reads: one or more clauses drafted for inclusion in a number of contracts, with the exception of clauses that define the core of the performance, provided that these latter clauses are formulated clearly and comprehensibly. It's a lot to take in. But the definition makes clear that: (a) conditions are only general conditions if they are ‘intended’ to be included in a number of agreements and (b) that ‘core clauses’ cannot be general conditions.

    What is the difference between general terms and conditions and core clauses?

    • Core clauses: core clauses are provisions that constitute the "actual subject matter of the contract". In other words: they determine the core of the performance of the agreement. These are the essentialia that are most determinative for the counterparty in deciding whether to conclude the agreement. Think of prices, tariffs, type, quantity, and weight. These types of provisions cannot be hidden away in general terms and conditions.
    • General terms and conditions: general terms and conditions are clauses that supplement or support the core clauses. These are agreements that do not fall under the "actual subject matter of the contract”. As a rule, general terms and conditions cover matters that the user either does not want to negotiate or wants to negotiate as little as possible. Such as guarantees, quality, liability, duration, termination, and renewals.
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    The Three-step rocket for general terms and conditions

    We use a "Three-step Rocket" to make the use of general terms and conditions clear and legally correct:

    1. Declaring applicability: the user must take the initiative to make the general terms and conditions known. This ensures clarity about which conditions apply.
    2. Providing the terms: the other party must be given the opportunity to review the general terms and conditions. This must happen before or at the time of entering into the agreement.
    3. Assessing the content: you are generally free to agree on your own terms and conditions, as long as they do not violate the law, public policy, good morals, or principles of fairness. If they do, they can still be annulled or declared invalid.

    Reasonableness test and black and grey lists

    General terms and conditions between a business and a consumer can be subjected to the reasonableness test. When a term is contested, its reasonableness can be assessed. This may involve reference to the black or grey list in the Dutch Civil Code. The consequence of this test may be the voidability of a clause if it is deemed unreasonably onerous. In this regard, circumstances such as the following may be relevant:

    • capacity of the parties;
    • their social position;
    • the parties relative positions;
    • and their expertise.

    Terms on the black list are automatically considered unfair. Terms on the grey list are presumptively unreasonable. It is up to the user (of the general terms and conditions) to demonstrate that the term is in fact reasonable.

    Common questions about general terms and conditions

    Do I always have to provide the general terms and conditions again in an ongoing business relationship?

    Depending on the nature of the business relationship and the circumstances of the case, repeated reference in subsequent contracts is not always required for the applicability of general terms and conditions. However, it is advisable to do with each contract.

    Repeated reference may be dispensed with in certain situations. For example, when a framework agreement exists between the parties that establishes the applicability of general terms and conditions, or when a practice has developed between the parties to use certain terms.

    May I refer to (our) website homepage for the general terms and conditions?

    The basic principle is that the terms must be provided so that the other party can save and display them. According to the law, a reference to a website's homepage does not suffice. A specific reference to the URL of the webpage on which the general terms and conditions are directly accessible is required. Otherwise, the other party would still need to search for them on the website.

    Are general terms and conditions deposited at the Chamber of Commerce sufficient?
    Simply indicating where the terms and conditions have been deposited does not meet the information obligation. The principle is that the terms and conditions must be handed over directly. There is an exception. Only when it is not reasonably possible to provide the conditions before or at the conclusion of the agreement, the user can fulfill his duty to provide information by means of the subsidiary route. This alternative route requires that the other party is notified before concluding the contract that: a) the terms are available for review, and b) they will be sent upon request.
    Is a reference to general terms and conditions in a general disclaimer at the bottom of an email message legally valid?

    This question requires a twofold answer:

    1. Applicability: in the case of a so-called disclaimer at the bottom of an email, it must be clear that the party making the offer is only willing to contract under the general terms and conditions stated therein. The disclaimer must therefore be formulated clearly enough to be enforceable.
    2. Provision of terms: according to the law, the user must take the initiative to disclose the general terms and conditions, and must do so in such a way that it is clear to the other party which terms apply and that the other party can readily review them. This standard is not easily met. Simply giving the other party the option to look up the terms on the internet is not sufficient.
    Therefore: where it is reasonably possible to provide the terms directly, whether by email or post, the user is expected to do so.
    What happens if both parties use their own terms and conditions?

    Then you must expressly reject the other party's terms and conditions; otherwise, the first shot rule applies.

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