General terms and conditions: when are they binding online?

Ticking the box “I agree to the general terms and conditions” binds you to them, whether or not you read them. The exception: terms the business never properly made available to you, and clauses on the statutory black and grey lists, can be set aside under Articles 6:233 to 6:237 of the Dutch Civil Code (BW). This article explains how general terms and conditions (algemene voorwaarden) work when you buy online; for drafting your own terms, see our guide to general terms and conditions under Dutch law.

What are general terms and conditions?

They are standard clauses a business drafts to include in a number of agreements, other than the clauses on the core of the deal. Article 6:231 sub a BW defines them as one or more clauses drafted with a view to being included in a number of agreements, excluding clauses that set out the core obligations, to the extent those are clear and understandable.

The law calls the business that applies the terms the “user” (Article 6:231 sub b BW); in a web shop this is the seller. You, the party that accepts the terms by signature, a tick box or otherwise, are the “counterparty” (Article 6:231 sub c BW).

Which clauses fall outside the rules?

The core terms of the deal: the product or service, the price and the quantity or quality delivered. Because Article 6:231 sub a BW excludes them, you cannot have the price or the product set aside as an unreasonable general term, provided those terms are clear and understandable.

The rules on general terms and conditions also do not apply to employment contracts and collective labour agreements. If a clause can be read in more than one way, the reading most favourable to you as a consumer prevails (Article 6:238 paragraph 2 BW).

When must a business give you the terms?

Before or when the agreement is concluded. Under Article 6:234 paragraph 1 BW, the business must hand over the terms, or, if that is not reasonably possible, tell you before the deal where you can inspect them (at its premises, a Chamber of Commerce or a court registry) and that it will send them on request.

If the business did not hand over the terms in time, you can annul (vernietigen) the clauses you object to, rather than the whole agreement (Article 6:233 sub b BW). The business can only avoid this by sending the terms promptly and at its own cost once you ask for them, where it was not reasonably possible to hand them over earlier.

Can a business give you the terms electronically?

Yes, provided you can store them and access them later. Under Article 6:234 paragraph 2 BW, a web shop must make the terms available electronically before or when the contract is concluded, for example as a downloadable PDF next to the tick box. If the contract itself is not concluded electronically, the business needs your explicit consent to provide the terms electronically instead of on paper (Article 6:234 paragraph 3 BW).

A link to terms that cannot be saved, or terms that only appear after payment, does not meet these requirements. Whether earlier dealings between the same parties are enough is decided case by case by the courts.

Which clauses are always unreasonable: the black list

Clauses on the black list in Article 6:236 BW are always unreasonably onerous when used against a consumer, and you can annul them without further argument. They fall into three groups:

1. Clauses that take away your rights, such as the right to performance (sub a) or the statutory right to dissolve the agreement (sub b).
2. Clauses that give the business extra rights, such as raising the price within three months of the agreement without giving you a right to dissolve it (sub i), or tacitly renewing a subscription without your being able to cancel at any time with at most one month’s notice (sub j).
3. Clauses on evidence and procedure, such as limiting your means of evidence or shifting the burden of proof to you (sub k), or sending disputes to a court other than the competent one without giving you at least one month to choose that court (sub n).

Which clauses are presumed unreasonable: the grey list

Clauses on the grey list in Article 6:237 BW are presumed unreasonably onerous against a consumer, but the business may prove that the clause was reasonable in the specific case. Examples are a clause that substantially limits what the business owes you compared with what you could reasonably expect (sub b), an unusually long or vague delivery period (sub e), and a notice period for you that is longer than the business’s own (sub l).

Clauses on neither list can still be annulled under the general standard of Article 6:233 BW if they are unreasonably onerous, taking into account the nature of the agreement and the way the terms were drawn up.

Do these rules also protect businesses?

Partly. The black and grey lists only protect consumers. The duty to provide the terms applies to business deals as well, but under Article 6:235 paragraph 1 BW a company that publishes its annual accounts, or has 50 or more employees, cannot rely on Articles 6:233 and 6:234 BW at all.

What should you check as a consumer?

Check the terms before you pay, not after a dispute arises. In practice:

• Were the terms available before or at checkout, in a form you could save?
• If not, did you ask for them, and did the business send them promptly?
• Does a clause take away your right to performance or to dissolve the agreement (black list, Article 6:236 BW)?
• Does a subscription renew automatically without a one-month notice period?
• Does a clause limit the seller’s liability or give it an open-ended delivery period (grey list, Article 6:237 BW)?

What should you check as a business using general terms?

Make sure your terms are provided correctly and do not contain listed clauses. In practice:

• Do customers get the terms before the deal, as a downloadable file next to the tick box?
• Can you prove, for example from your web shop logs, that the terms were made available?
• Have you removed or rewritten clauses on the black list of Article 6:236 BW?
• Can you justify each grey-list clause if a consumer challenges it?
• Do subscription and renewal clauses comply with the one-month notice rule?

What can we do for you with general terms and conditions?

Our corporate lawyers advise both businesses and their customers on general terms. We can:

• Review your general terms against the black and grey lists of Articles 6:236 and 6:237 BW.
• Check whether your web shop provides the terms in the way Article 6:234 BW requires.
• Assess whether a clause invoked against you can be annulled, and draft the annulment letter.
• Draft or update general terms for your business, in English and Dutch.
• Represent you before the subdistrict court (kantonrechter) in a dispute over a clause.

Summary

• General terms and conditions are the standard clauses a business attaches to its agreements, other than the core terms of the deal.
• A business must give you a real opportunity to read the terms before or when you enter into the agreement, on paper or in a form you can save electronically.
• If the terms were not properly provided, you can annul the clauses rather than the whole agreement.
• Black-list clauses are always unreasonable against consumers; grey-list clauses are presumed unreasonable unless the business shows otherwise.

Frequently asked questions