Handing out general terms and conditions: a brief guide
Date: March 01, 2023
Modified November 14, 2023
Written by: Niels van den Bogaard
Reading time: +/- 2 minutes
Date: March 01, 2023
Modified November 14, 2023
Written by: Niels van den Bogaard
Reading time: +/- 2 minutes
'Better safe than sorry'. That's why many businesses use general terms and conditions. Chances are your company also has a nice set of terms and conditions. However, just 'having this set on the shelf' is not enough. If you want these conditions to be effective in the relationship between you and your supplier or customer, you must offer them to your contracting party.
How you should do that depends on the type of contract, the way the contract was created but also the type of parties involved. This is because additional conditions apply to consumers, about which we wrote this article earlier. In this article, Niels van den Bogaard and Daniek Regterschot provide a guide to ensure that your general terms and conditions are correctly presented and apply to B2B contracts.
As a main rule, the duty to inform is fulfilled if the text of the general terms and conditions is offered before or at the conclusion of the contract (the handover). This can be done, for example, by printing the terms and conditions on the back of a written offer, referring to this text on the front.
Sometimes actually handing over the terms is not possible, such as when buying groceries. In those situations, you must disclose to your contracting party that:
Suppose your company runs a web shop or the contract is otherwise established electronically. Electronic delivery of the general terms and conditions will suffice. However, this requires that your contracting party can easily take note of the terms and conditions and that they can be stored so that they are still accessible later.
This can be done, for example, by:
Even if the contract is not concluded electronically, an electronic provision of the terms and conditions is possible. This is subject to the condition that the contracting party expressly agrees to their provision by electronic means.
For service providers, such as ICT service providers or accountants, the law has a separate regime. A service provider fulfills its information obligation if it provides its terms and conditions in one of the four ways below.
This can be done by the terms:
If you do not provide the general terms and conditions (correctly), you are not fulfilling your obligation to provide information according to the law. The law then states as a sanction that the general terms and conditions are voidable . This means that the user of the general conditions (your company) can no longer rely on the provisions of the conditions. Consider, for example, clauses that limit your company's liability.
Your contracting party must then invoke this defeasibility. If your contracting party is of the opinion that the conditions have not been handed over (correctly), it is up to your company to prove that the obligation to provide information has been fulfilled.
The duty to hand (duty to inform) is aimed at protecting consumers and small businesses. Large enterprises are expected to be able to sufficiently arm themselves against general terms and conditions, which prevents them from relying on the user's obligation to provide information.
A large company is said to be large if the company has published its latest financial statements at the time the agreement is made. In addition, a company may be considered "large" if it has 50 or more employees.
Under the guise of "the pot calling the kettle black," contracting parties who have (virtually) the same terms and conditions also cannot claim breach of the duty to inform.
In practice, it frequently happens that the party with whom you enter into the contract also has its own general terms and conditions. In that situation, the terms and conditions of the party that first refers to its terms and conditions apply. You can avoid this by explicitly rejecting (rejecting) the applicable general conditions before or during the conclusion of the contract.
Want to avoid having your supplier's or buyer's adverse general terms and conditions apply to a contract, but have questions about how best to do so? Then get in touch via the contact form below or one of our attorneys specialized in general terms and conditions. We will be happy to assist you!
This page was last updated on August 14, 2023.
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