General terms and conditions are also known as ‘the small print’. General terms and conditions are standard terms that a party (the user) declares applicable to agreements that are concluded with him. In order to reflect usual practice, a title in the Dutch Civil Code is devoted to the applicability and contents of general terms and conditions. Obligations that touch the core of the performance, like a description of the delivered goods or the price, are excluded from this.
The applicability of general terms and conditions is often subject to discussion. In order to meet practice, the offer and acceptance of general terms and conditions is assumed sooner than would be the case under the general rules of offer and acceptance. It is not required that the general terms and conditions are actually read and understood. This may result in a limitation of liability or other clause that is undesirable (for the other party) silently becoming part of the agreement. Dutch law offers protection against this in two ways. Firstly, the other party can nullify a clause in general terms and conditions if that clause is unreasonably onerous. For consumers (and small companies in exceptional situations via the so-called ‘consequential effect’), there is the ‘black’ and the ‘grey’ list. Black are clauses that are unreasonably onerous in any event. Grey are clauses suspected of being unreasonably onerous. Secondly, the other party must have had the opportunity to take note of the general terms and conditions ultimately upon concluding the agreement. If the other party did not have this opportunity, and the general terms and conditions were not handed over in the appropriate way, this is also a ground for nullification.
However, not everyone can rely on the two above-mentioned grounds for nullification. The right to nullification is set out by law in order to protect in particular consumers and small companies. Large companies are deemed to have agreed to the general terms and conditions. According to legislative history, the option of nullification constitutes an unnecessary infringement of the freedom of contract in the case of a large party.
The law sets out when a companyis ‘large’. Firstly, a company is large if the legal entity ‘at the time of concluding the agreement has most recently published its annual accounts’, or regarding which recently Section 2:403 (parent company declares that it assumes joint and several liability) has recently been applied. In a recent judgment (20 May 2022), the Supreme Court confirmed that the question is not so much whether the legal entity is obliged to publish its annual accounts, but whether these have actually been published. This judgement was made in order to prevent problems of evidence. After all, it is easy to ascertain for users that annual accounts were published. Should the first requirement not have been met, a company can still be ‘large’ if it has 50 employees or more, or if this follows from the Trade Register.
Please note that the general terms and conditions regime does not apply to agreements between parties that are not both domiciled in the Netherlands, regardless of the law governing the agreement. In such a case, the general rules of offer and acceptance apply.
