General terms and conditions (algemene voorwaarden)

General terms and conditions are the standard clauses a party draws up for use in a series of contracts. Dutch law lets them apply easily but strikes them down easily too, and the difference usually lies in whether they were actually provided.

Legal basis

Articles 6:231 to 6:247 of the Dutch Civil Code contain the regime. Article 6:232 makes them binding even where the other party did not read them, provided they were declared applicable. But Article 6:233 under b allows the other party to annul a clause if it was not given a reasonable opportunity to take note of the conditions, and Article 6:234 sets out how that opportunity must be given: by handing them over before or at the conclusion of the contract, or, where that is not reasonably possible, by making them available electronically or on request.

The black and grey lists

For contracts with consumers, Article 6:236 lists clauses that are unreasonably onerous in all cases, and Article 6:237 lists clauses presumed to be so unless the user proves otherwise. Small businesses can invoke these lists indirectly through the general standard of Article 6:233 under a, an approach the courts accept in appropriate cases.

Battle of the forms

Where both parties refer to their own conditions, Article 6:225 paragraph 3 gives the Dutch first shot rule: the conditions referred to first apply, unless the second party expressly rejects those of the first. Expressly means expressly; a standard clause in the reply stating that only its own conditions apply is not enough.

Where it goes wrong

A reference on an invoice is too late, because the contract was concluded earlier. A link on a website is only sufficient in electronic contracting, and even then the conditions must be storable. And a set of conditions that has not been reviewed for a decade often contains a liability clause that the current case law no longer accepts.