Do-it-yourself lawyers: watch out for the surprise clause!

A surprise clause is a clause in a contract or in general terms and conditions that the other party could not have anticipated and that proves unreasonably disadvantageous to them. Because such a clause is formulated insufficiently clearly or unclearly, the court may annul it as unreasonably burdensome. You can then no longer rely on it, even if it is properly stated on paper. Entrepreneurs who draft their own contracts and general terms and conditions , in particular, run this risk without realizing it

Many entrepreneurs draft their contracts themselves: we call them do-it-yourself lawyers. At first glance, all clauses appear valid, but in practice, there is a catch. The surprise clause is a well-known example of this. Below, we explain exactly what a surprise clause is, what the consequences are, and how to prevent it.

What is a surprise clause?

A surprise clause is a clause in a contract or in general terms and conditions the adverse consequences of which the other party could not reasonably have expected. It is therefore not only about the content of the clause, but primarily about the question of whether the other party should have been aware of it. Whether a clause constitutes a surprise clause depends on the specific circumstances of the case.

Two things play a leading role in this:

• The ascertainability. Was the clause sufficiently brought to the attention, or was it hidden among the other provisions?
• The wording. An unclear or ambiguously worded clause is more likely to be perceived as surprising than a clear provision.

The term “surprise clause” is not a separate article of law, but an elaboration of the rules regarding general terms and conditions in the Dutch Civil Code. A clause in general terms and conditions may be annulled pursuant to Article 6:233 of the Civil Code if it is unreasonably onerous, or if the user has not offered the other party a reasonable opportunity to become acquainted with the terms. The surprising nature of a clause plays an important role in that assessment.

Surprise clause versus the black and grey list

For agreements with consumers, the law also provides for a “black list” and a “grey list” of clauses that are considered or are presumed to be unreasonably burdensome. A surprise clause is separate from those lists: even a clause that does not appear on a list may fail if it is too surprising or too unclear. The open test of Article 6:233 of the Dutch Civil Code therefore always remains relevant, alongside those statutory lists.

What are the consequences of a surprise clause?

The most important consequence is far-reaching: if a judge rules that a clause is unreasonably onerous due to its surprising nature, he can annul the clause. The clause then loses its effect, and you can no longer derive any rights from it.

For an entrepreneur, that means concretely:

• You can no longer rely on a limitation of liability or an exclusion that you were counting on.
• A loss you thought you had covered ends up being at your expense after all.
• The legal relationship is further assessed as if the clause never existed.

In other words: a surprise clause can, at the crucial moment in the event of a dispute, deprive you of precisely the protection for which you included the clause. Important to know: a clause is not automatically invalidated. The other party must invoke it. However, in the event of a serious dispute, count on a well-advised opposing party doing so.

A practical example of a surprise clause

A compelling example is an insurance matter between a pig farmer and his insurer.

The facts. The fans in the pig farmer's barn failed, causing his pigs to die of suffocation. The insurer refused to pay compensation for the damage, invoking an exclusion clause in the policy conditions. That clause stipulated that there was no coverage if the alarm had not gone off, and the alarm had indeed not gone off. Subsequent technical investigation could not explain why the alarm had failed.

The verdict. The judge ruled that the insurer had failed to adequately alert its client to this far-reaching exclusion clause. Consequently, the clause came as a surprise and was set aside, meaning the insurer was still required to pay compensation for the damages. This example demonstrates how a clause you thought you could rely on can actually cost you a great deal of money if the information provided is not properly known.

The lesson for entrepreneurs is clear: the more far-reaching the consequences of a clause, the more explicitly you must draw attention to it. You must not hide an exclusion or extensive limitation of liability that could really affect your counterparty in the fine print.

How do you avoid a surprise clause?

The good news: with a few clear measures, you significantly reduce the risk.

1. Formulate clearly and legibly

Write clauses in grammatically correct, understandable sentences. Avoid unnecessary legal jargon, especially when your counterparty is not a lawyer. The clearer the wording, the less likely a clause is to be perceived as surprising.

2. Actively draw attention to the clause

Do not hide a far-reaching clause somewhere in the middle of your terms and conditions. Point it out explicitly, for example by referring to it specifically in the quotation or order confirmation. What has been made clear to the other party in advance can hardly come as a surprise.

3. Ensure correct delivery

Ensure that your general terms and conditions are made available in a timely and proper manner, i.e., before or at the time of concluding the agreement. A counterparty who has not had a reasonable opportunity to read the terms and conditions is more likely to successfully challenge them later. Also document that and how you provided the terms and conditions, so that you can prove this in the event of a dispute.

4. Have your terms and conditions drafted or reviewed by a lawyer

The surest route is professional review. A legal expert assesses whether your clauses are sufficiently clear and discernible and whether they stand the test of the Civil Code. This prevents you from being left empty-handed at the decisive moment. At MKB Juristen, this is a standard part of our work in contract law.

Frequently asked questions about the surprise clause

What exactly is a surprise clause?

A surprise clause is a clause in a contract or in general terms and conditions the adverse consequences of which the other party could not reasonably have expected, because the clause was insufficiently clear or vaguely formulated.

Is a surprise clause always invalid?

Not automatically. A judge assesses, based on the specific circumstances, whether the clause is unreasonably burdensome. Only if that is the case, and if the other party invokes it, can the clause be annulled. Proper wording and clear discernibility can prevent annulment.

Does protection against surprise clauses also apply between entrepreneurs?

Even in business relationships, a clause can be unreasonably burdensome, although the circumstances often differ from those involving consumers. Moreover, for large enterprises, the right to invoke annulment is legally limited. The knowability and clarity of the clause remain important, even between entrepreneurs. In cases of doubt, have your terms and conditions legally reviewed.

What is the difference between a surprise clause and a clause on the black or grey list?

The black and grey lists are statutory enumerations of clauses that are (presumably) unreasonably burdensome in consumer relationships. A surprise clause does not need to appear on such a list: it is primarily assessed based on its knowability and clarity in the specific case. Both routes can lead to a clause being annulled.

How do I know if my general terms and conditions contain a surprise clause?

Critically review whether far-reaching clauses, such as exclusions and limitations of liability, are clearly formulated and actively brought to the attention of the parties. In doubt? Then have your general terms and conditions checked by a lawyer.

Have your contracts and terms and conditions legally reviewed

Do you want to prevent a surprise clause from letting you down at the wrong moment? The legal experts at MKB Juristen are happy to assist you. We draft clear general terms and conditions , review your existing contracts, and advise on your contract law. Would you prefer to discuss your situation? Schedule a no-obligation intake and ensure your terms protect you when it matters most.