When are the general terms and conditions of an agreement applicable?

The same rules apply to the applicability of general terms and conditions as to the conclusion of an agreement. There must be an offer and acceptance. The general terms and conditions apply when the user has offered the other party a reasonable opportunity to take note of the general terms and conditions. According to the law, this is the case if:

• The user has handed over the general terms and conditions to the other party before or at the conclusion of the agreement;
• The user has made the general terms and conditions available to the other party electronically before or upon conclusion of the agreement. The conditions must be made available in such a way that they can be stored by the other party;
• The user has informed the other party that the terms and conditions are available for inspection.

 Voidability of a clause in the general terms and conditions

Even if the other party was not aware of the content of the general terms and conditions when the agreement was concluded, the other party is bound by them. This will be different if the user has not offered the other party a reasonable opportunity to take note of the general terms and conditions. This leads to the voidability of the general terms and conditions.

Furthermore, if a stipulation in the general terms and conditions is unreasonably onerous for the other party, it is also voidable. When assessing whether a clause is unreasonably onerous, the nature and other contents of the agreement, the mutually identifiable interests of the parties and the other circumstances of the case are taken into account.

Unreasonably onerous clause: black list and grey list

Two lists are included in Dutch law, the black list and the grey list. The stipulations contained therein are voidable. Consumers and in some cases small businesses can rely on these lists. Terms on the blacklist are by definition regarded as unreasonably onerous. Such clauses are voidable. The entrepreneur may not invoke such a clause vis-à-vis the consumer.

Terms on the grey list are presumed to be unreasonably onerous. The entrepreneur who invokes such a clause in its general terms and conditions must provide proof to the contrary against this statutory presumption.