Article 6:231 of the Dutch Civil Code defines general terms and conditions as one or more stipulations drafted for inclusion in a number of contracts with the exception of stipulations that represent the essence of the performance.
General terms and conditions ('algemene voorwaarden') are frequently applied to commercial transactions in the Netherlands. The Dutch Civil Code not only regulates the contents of general terms and conditions but also how the other party is to be informed on their existence.
Lack of awareness is not an excuse ... Under Dutch contract law, a party who has accepted the applicability of a set of general terms and conditions, without reading them, is bound by these terms and cannot employ the excuse that he was not aware of their contents. Upon acceptance, the terms and conditions become part of the agreement.
Dutch law provides that acceptance can take place by signing a document or in any other way. This means, that by not rejecting the terms and conditions, acceptance may be assumed. Although there are no formal requirements, it is advisable to have a written document signed in order to be able to prove the applicability of the terms and conditions should this later be disputed.
If a party wishes to reject the general terms and conditions proposed by the other party it should do so by indicating in his acceptance that he will only accept the offer if his own terms and conditions apply and by clearly stating that he rejects the terms and conditions of the other party.
As a general rule, a party using the terms and conditions isunder a duty to provide the general terms and conditions to the other party before or at the moment when the agreement is concluded. If they do not do so, the other party may annul them. Alternatively, the party intending to use its general terms and conditions may inform the other party, before formation of contract, that the terms and conditions are available for inspection or that they have been lodged with a chamber of commerce and industry or the office of the clerk of a court and that they will be sent to the other party upon request.
A term contained in general terms and conditions may be annulled if, taking all circumstances into account, it is unreasonably onerous to the other party.
Consumer contracts – the grey and black list - Under Dutch law, certain stipulations contained in an agreement between a business and a consumer are considered unreasonably onerous from the outset. Therefore, it is important to pay close attention to article 6:236 of the Dutch Civil Code, the so-called black list, and article 6:237 of the Dutch Civil Code, the grey list. Stipulations falling under the black list are stipulations that are invariably unreasonably onerous. On the other hand, stipulations falling under the grey list are presumed to be unreasonably onerous. The difference is that, if the matter falls within the scope of the grey list, a party can rebut the presumption that the stipulation is unreasonably onerous. This is not possible with matters falling under the black list.
Drawing up general terms and conditions can be handy for a business. However, the legal requirements for the usage of general terms and conditions under Dutch law are often underestimated.