General terms and conditions (algemene voorwaarden) under Dutch law: binding effect, black and grey lists

General terms and conditions, in Dutch algemene voorwaarden, are standard clauses drafted for use in a number of contracts. Under Dutch law they bind the other party once accepted, even if that party never read them (Articles 6:231 and 6:232 of the Dutch Civil Code). The other party can annul a clause that is unreasonably onerous, or all of the terms if the user did not give a reasonable opportunity to read them (Article 6:233). For consumer contracts, a black list and a grey list set out clauses that are, or are presumed to be, unreasonably onerous (Articles 6:236 and 6:237). Large companies cannot invoke these grounds for annulment, and between businesses that are not both established in the Netherlands the statutory rules do not apply at all (Articles 6:235 and 6:247).

General terms and conditions under Dutch law at a glance

• Binding once accepted, by signature or otherwise, even if unread (Article 6:232).
• Duty to provide: hand them over before or at the conclusion of the contract, or make them available electronically (Article 6:234).
• Two grounds for annulment: an unreasonably onerous clause, or no reasonable opportunity to read the terms (Article 6:233).
• Consumers: 20 black-listed clauses and 15 grey-listed clauses (Articles 6:236 and 6:237).
• Large companies excluded: parties with published annual accounts or 50 or more staff cannot annul on these grounds (Article 6:235).
• International B2B: the rules do not apply between businesses that are not both established in the Netherlands, whatever law governs the contract (Article 6:247(2)).

On this page

What Are General Terms and Conditions Under Dutch Law?

One or more clauses drafted for inclusion in a number of contracts, with the exception of clauses setting out the core of the performance, provided those core clauses are formulated clearly and understandably (Article 6:231(a) of the Dutch Civil Code).

The party that uses the terms is the "user"; the party that has accepted them is the "other party" (Article 6:231(b) and (c)). What matters is that the clauses were drafted for repeated use. Whether they are called terms of delivery, terms of business or terms of service makes no difference, and a single clause can qualify. The core exception covers, for example, the price and the main description of what is delivered; a core clause that is not clear and understandable loses the exception and can be tested like any other clause.

When Are You Bound by General Terms and Conditions?

When you have accepted that they apply, by signing a document or in any other way. You are bound even if you did not know their contents and the user knew or should have known that (Article 6:232 of the Dutch Civil Code).

Acceptance can follow from conduct, for example where a party keeps contracting on the basis of an offer or order confirmation that refers to the terms without objecting. Whether that is enough depends on the circumstances; the user bears the burden of proving acceptance if it is disputed. The safest route is a signed contract or order that refers to the terms expressly. Being bound to the terms as such does not mean every clause survives: the protection lies in annulment, discussed below. On how acceptance works generally, see offer and acceptance.

What Happens if Both Parties Refer to Their Own Terms?

The first reference wins. If offer and acceptance refer to different general terms, the second reference has no effect unless it also expressly rejects the terms referred to first (Article 6:225(3) of the Dutch Civil Code).

A buyer who wants its own purchasing terms to apply must therefore not only refer to them, but expressly reject the seller's terms. It is safest to do so in the acceptance itself, rather than to rely on a standard clause hidden in one's own terms. See the battle of forms under Dutch law.

How Must General Terms and Conditions Be Provided?

The user must give the other party a reasonable opportunity to read the terms. As a rule this means handing them over before or at the conclusion of the contract (Article 6:234(1) of the Dutch Civil Code).

Filing the terms with the Chamber of Commerce is therefore a fallback, not an alternative: it only works if handing them over was not reasonably possible. A reference on an invoice sent after the contract was concluded comes too late. If the user fails this duty, the other party can annul the terms, including clauses that are perfectly reasonable in themselves (Article 6:233(b)).

When Can a Clause in General Terms and Conditions Be Annulled?

When the clause is unreasonably onerous for the other party, taking into account the nature and content of the contract, the way the terms came about, the parties' mutually apparent interests and the other circumstances of the case (Article 6:233(a) of the Dutch Civil Code).

This is an assessment of all circumstances, not a fixed rule. Relevant factors include whether the clause is unusual for this type of contract, whether it was negotiated or explained, how clearly it is worded, and the position of the parties. A clause the other party could not reasonably have expected is more readily set aside. In consumer contracts, clauses must also be drafted clearly and understandably, and if there is doubt about the meaning the interpretation most favourable to the consumer prevails (Article 6:238(2)).

Annulment works through a declaration by the other party, out of court or in proceedings; see annulment of legal acts. The time limit for annulment starts on the day after the user has invoked the clause (Article 6:235(4)). An annulled clause falls away; the rest of the contract and of the terms remains in force. Apart from annulment, a clause can also be set aside in a specific case because relying on it would be unacceptable by standards of reasonableness and fairness; see reasonableness and fairness.

Who Can Invoke the Protection for General Terms?

Consumers and smaller businesses. Larger businesses cannot rely on the two grounds for annulment in Articles 6:233 and 6:234 (Article 6:235(1) of the Dutch Civil Code).

• A legal entity that last published its annual accounts before the contract was concluded (or for which the group exemption was used) cannot invoke them.
• Nor can any other party with 50 or more people working for it at that time, or registered as such in the Trade Register.
• A party that itself repeatedly uses the same or almost the same general terms in its contracts cannot invoke them either (Article 6:235(3)).

A large business is not without protection: it can still argue that relying on a clause is unacceptable by standards of reasonableness and fairness, and courts sometimes take the black and grey lists into account as a point of reference in business contracts as well.

Which Clauses Are on the Black List for Consumer Contracts?

In a contract with a consumer, the clauses in Article 6:236 of the Dutch Civil Code are always regarded as unreasonably onerous. The user cannot prove otherwise; the consumer can annul them.

In summary, a clause is black-listed if it:

1. entirely and unconditionally deprives the consumer of the right to claim the promised performance;
2. excludes or limits the consumer's right to dissolve the contract for non-performance;
3. excludes or limits the consumer's statutory right to suspend performance, or gives the user a wider right to suspend than the law does;
4. leaves it to the user to decide whether the user has failed to perform, or makes the consumer's rights for such a failure depend on first suing a third party;
5. lets the consumer consent in advance to the user transferring its obligations to a third party, unless the consumer can always dissolve the contract, the user remains liable for the third party, or the transfer is part of a transfer of the business;
6. excludes or limits the defences the consumer would have against a third party to whom the user's rights are transferred;
7. shortens a statutory limitation or expiry period for the consumer's rights to less than one year;
8. makes the consumer compensate, or bear a larger share of, damage caused to a third party by the user or by a person or thing for which the user is liable;
9. allows the user to raise the price within three months of concluding the contract, unless the consumer may then dissolve the contract;
10. in a contract for the regular supply of goods (including electricity, heating and cooling, but not newspapers and magazines) or services, leads to tacit renewal or continuation without the consumer being able to terminate the continued contract at any time with at most one month's notice;
11. excludes or limits the consumer's right to produce evidence, or shifts the statutory burden of proof to the consumer's detriment;
12. deviates to the consumer's detriment from the rules on when a statement takes effect (Article 3:37), with limited exceptions;
13. makes a consumer living in a Dutch municipality elect a different domicile, with a limited exception for registered property;
14. provides for dispute resolution by someone other than the court competent by law, unless the consumer is given at least one month after the user invokes the clause in writing to choose the competent court;
15. excludes or limits the consumer's right to terminate a contract in the same way as it was concluded, orally, in writing or electronically;
16. renews a newspaper or magazine subscription tacitly for more than three months, or for at most three months without the right to terminate each time with at most one month's notice;
17. continues a newspaper or magazine subscription tacitly for an indefinite period without the right to terminate at any time with at most one month's notice, or three months if delivery is less than monthly;
18. requires the consumer to give notice of termination of such contracts at a specific moment;
19. continues a limited introductory newspaper or magazine subscription;
20. limits the validity of a gift voucher to less than two years.

Which Clauses Are on the Grey List for Consumer Contracts?

The clauses in Article 6:237 of the Dutch Civil Code are presumed to be unreasonably onerous in a consumer contract. Unlike the black list, the user can rebut that presumption by showing that the clause is reasonable in the circumstances.

In summary, a clause is grey-listed if it:

1. gives the user an unusually long or insufficiently defined period to respond to an offer or other statement by the consumer;
2. substantially limits the user's obligations compared with what the consumer could reasonably expect without the clause;
3. allows the user to deliver something substantially different from what was promised, unless the consumer may then dissolve the contract;
4. releases the user from being bound by the contract, or gives it the power to release itself, other than on grounds stated in the contract that are such that the user can no longer be required to remain bound;
5. gives the user an unusually long or insufficiently defined period for performance;
6. wholly or partly releases the user or a third party from a statutory obligation to pay damages;
7. excludes or limits the consumer's statutory right of set-off, or gives the user a wider right of set-off;
8. makes the consumer lose rights or defences as a sanction for certain conduct, unless that conduct justifies the loss;
9. obliges the consumer to pay a sum of money if the contract ends other than for the consumer's breach, except reasonable compensation for the user's loss or lost profit;
10. obliges the consumer to enter into another contract with the user or a third party, unless that can reasonably be required;
11. sets a term of more than one year for a regular supply or subscription contract, unless the consumer may terminate at any time after one year with at most one month's notice;
12. binds the consumer to a longer notice period than the user;
13. requires a stricter form than a private written document for a statement by the consumer;
14. makes a power of attorney given by the consumer irrevocable or unaffected by death or guardianship, except for the transfer of registered property;
15. binds the consumer, in contracts other than renewed or continued supply and subscription contracts, to a notice period of more than one month.

Grey item (f) is why exemption and limitation of liability clauses in consumer terms are so often challenged. See exemption clauses and limitation of liability.

Do the Dutch Rules Apply to International Contracts?

It depends on who the parties are and where they are established, not only on which law governs the contract (Article 6:247 of the Dutch Civil Code).

A party counts as established in the Netherlands if its principal place of business is there, or, if the contract is to be performed by another branch, that branch is in the Netherlands (Article 6:247(3)). For a Dutch business contracting with a foreign business, the terms are then assessed under general contract law, including reasonableness and fairness, rather than under these specific rules. A choice of court in the terms needs separate attention; see choice of forum clauses.

Do General Terms and Conditions Have to Be in Dutch?

No. The Civil Code rules on general terms do not require them to be drafted in Dutch. Terms in English are common and valid in Dutch business practice.

Language can still matter. Whether the user offered a reasonable opportunity to read the terms, and whether a clause is unreasonably onerous, are assessed in light of all circumstances, and a language the other party does not understand is one of them. In consumer contracts, clauses must be clear and understandable (Article 6:238(2)). A business that deals with Dutch consumers therefore usually provides Dutch terms, and if two language versions exist it is wise to state which one prevails.

What Should You Check When Drafting General Terms and Conditions?

1. Refer to the terms in the offer or quotation, before the contract is concluded, and ask for them to be accepted.
2. Hand them over, or attach or link them so they can be stored, at the latest at the conclusion of the contract.
3. Where the other party has its own terms, reject those expressly.
4. For consumers, remove every black-listed clause and justify or remove grey-listed ones.
5. Draft limitation of liability clauses clearly, with a cap and exceptions for intent and gross negligence.
6. Check whether the other party is a large company or foreign business, since different rules then apply.
7. Decide the language, and which version prevails if there are several.
8. Review the terms when the law or your business changes.

Which Legal Sources Govern General Terms and Conditions?

• Articles 6:231 to 6:247 of the Dutch Civil Code, general terms and conditions
• Article 6:225 of the Dutch Civil Code, conflicting references to general terms
• Article 6:236 of the Dutch Civil Code, the black list
• Article 6:237 of the Dutch Civil Code, the grey list
• Article 6:247 of the Dutch Civil Code, international contracts