How often do you read ‘by clicking here you agree to the terms and conditions’. Such terms and conditions contain the standard terms and conditions that you use when entering into an agreement with a counterparty. In this article, contract law attorney Dirk de Waard discusses the meaning, operation and voidability of general terms and conditions.
The definition of the general terms and conditions, the user and the other party
General terms and conditions are understood to mean: one or more stipulations that have been drawn up in order to be included in a number of agreements, with the exception of stipulations that indicate the core of the services. The user is the person who uses general terms and conditions in an agreement. The other party is the person who has accepted the validity of the general terms and conditions by signing a document or otherwise. The general terms and conditions are about the preconditions that you want to apply as standard. The terms and conditions do not deal with any special features of the product or service itself. For example the price, the colour or the quantity.
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.
Problems or questions about terms and conditions? VIOTTA is happy to help
It is recommended to formulate general terms and conditions that are tailored to your company. This strengthens your position towards the counterparty. It is important to comply with the legal requirements. This prevents legal proceedings. Do you need help drafting general terms and conditions or are you in doubt about the sustainability of your existing general terms and conditions? The experienced lawyers of VIOTTA are happy to help you. Please contact Dirk de Waard at firstname.lastname@example.org
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