Battle of the forms - under Dutch law

The “battle of the forms” is a problem that frequently arises during contractual negotiations, when both parties attempt to apply their own set of general terms and conditions to the transaction or contractual relationships. What does Dutch law provide if a party makes an offer referring to his own terms, whereas the opposing party accepts the offer on condition that his terms apply to the agreement?

Conflict between general terms and conditions

The Dutch Civil Code addresses the issue of the battle of forms in article 6:225(3), which codifies the so-alled "first-shot rule":

Where offer and acceptance refer to different general conditions, the second reference is without effect, unless it explicitly rejects the applicability of the general conditions as indicated in the first reference.

How to make sure that your own general terms and conditions apply under Dutch law?

If you want to make sure that your company’s general terms and conditions apply under Dutch law, you should always try to declare their applicability as early as possible in the negotiations, to prevent the other party from getting the 'first shot' in.

If you are contracting with a non-Dutch party, you should also be aware of the potential applicability of other common battle of the forms rules, such as the 'last-shot rule' or the 'knock-out rule.'

If the person or company who you are contracting with is faster and declares the applicability of their general terms and conditions before you do, make sure that you clearly and unequivocally reject the application of their general terms and conditions and state that you wish to contract on the basis of your own general terms and conditions.

Ensuring that your general terms and conditions apply and are enforceable against your counterparty can sometimes be tricky, especially if you are contracting with consumers, who enjoy special protections against onerous provisions in general term and conditions.