Are you allowed to draft general terms and conditions yourself? Advantages and risks

Yes, you are allowed to draft general terms and conditions yourself. There is no law that requires a legal expert, lawyer, or notary to do it for you. The question, therefore, is not whether it is allowed, but whether it is wise in your situation — and there is much more nuance to that than the internet would have you believe.

Piet the plasterer has been through it both ways. First, he drafted it himself based on a vague website (end result: unpaid invoice, invalidated clause, sleepless nights). Then, he hired a specialized lawyer (end result: a decent set, clients paid on time, human again). In this article: when drafting it yourself is possible, when it is definitely not, an honest step-by-step plan for those who still want to do it themselves, and the pitfalls that cost money most often.

The short answer: it is allowed, but watch out for the consequences

The law (Section 6.5.3 of the Dutch Civil Code) says nothing about who the author must be. An unauthorized colleague with a blinking cursor is allowed to do it. A brilliant lawyer is allowed to do it. Your grandfather with a poetry career is allowed to do it. What the law *does* require, however, is that:

• The conditions are not unreasonably burdensome (especially towards consumers — the black and grey lists);
• You offer your customer the reasonable opportunity to take notice of it before or at the conclusion of the agreement (the provision to the customer);
• Not be contrary to mandatory law.

In theory, you can meet those requirements yourself. In practice, it is the execution that falls short — more on that below.

Benefits of drafting your own terms and conditions

Fair is fair: there are advantages.

• Cost savings. A few evenings of your own time instead of a few hundred euros for a lawyer.
• You get to know your own risks. If you think carefully about what needs to go in, you also think about what can go wrong in your work. That is useful in itself.
• Speed. No waiting for a third party. Started today, finished tomorrow.
• You recognize your own language. You read a set you have written more easily. The same applies to clients, by the way — clear language from an entrepreneur reads better than thick legal jargon.

Risks of drafting it yourself

The other side — and in our experience, that is tougher than most entrepreneurs suspect.

• You don't know what isn't included. You only discover a missed limitation of liability when damage occurs. By then, it is too late.
• Prohibited or grey clauses creep in. When you modify a set of terms and conditions on the internet, you often unknowingly adopt clauses that are blacklisted for consumers — these are then void and give you a false sense of security.
• The delivery. Most homemade sets fail not because of the contents, but because they were never properly handed over to the customer. Without that, they are worthless.
• Outdated. The law changes. A set that was correct four years ago may now be outdated in certain respects (think of the right of withdrawal, GDPR, statutory commercial interest).
• False strength. This is the silent danger: you *think* you are protected, so you pay less attention to risks in your sales process. Until things go wrong.

Or, as Piet would say: it is a bit like building your own house. That is perfectly fine; it is also standing after a week. The question is whether it stays dry when it storms.

When can you really do it yourself?

Drafting it yourself is a reasonable plan if three things come together:

• You work almost exclusively B2B (other businesses, no consumers).
• Your work is straightforward: fixed price, fixed delivery time, limited liability inherent in the nature of the work itself.
• The amounts are small to medium, and you insure yourself against the real risk.

Under those circumstances, you can perfectly well start with a decent industry model and adapt it yourself. An evening, a second pair of eyes, done. Your knowledge of your own work then outweighs the lack of legal routine.

When it is better not to

In these cases, we advise against drafting it yourself. Not to cause panic, but because the cost of errors would be much higher than the savings from doing it yourself.

• You sell to consumers. The black and grey lists are a minefield. One wrong clause renders your entire liability clause worthless.
• You have a webshop. In addition to General Terms and Conditions, this requires provisions regarding the right of withdrawal, information obligations, and a separate privacy statement. It is not “General Terms and Conditions plus a few sentences”.
• You work with large sums. For assignments of tens of thousands of euros or more, an invalid limitation of liability suddenly becomes a claim of many tens of thousands.
• You provide custom work or advice. The more interpretation involved in your work, the more room there is for discussion afterwards. Good terms and conditions are therefore indispensable.
• You work internationally. Which law applies? Which court has jurisdiction? Translation and jurisdiction questions are not homework assignments.
• You are in a regulated industry. Healthcare, financial services, legal advice — extra rules you don't know by heart.

Step-by-step plan for those who still want to do it themselves

If you belong to the “I can do it myself” group, here is the order that poses the least risk.

1. Determine your target audience and risks. Who are your customers, and what usually goes wrong in your industry?
2. Get a good industry model. Many trade associations offer model terms and conditions, often free for members. Better than an unknown online document.
3. Write custom-made. Adapt every clause to your work: your payment term, your liability limit, your delivery time.
4. Check for prohibited clauses. Especially towards consumers: scan for exclusions of liability, unilateral modification rights, and short complaint periods.
5. Write it in clear language. No “therefore,” no “subject to what is provided by law.” Unreadable conditions are interpreted to the detriment of the drafter — and that drafter is you.
6. Arrange for the delivery. Refer to your terms and conditions in the quotation, order confirmation, and invoice, and send them along as an attachment or downloadable PDF. This is the step that is most often overlooked.
7. Have it proofread critically. Preferably by someone with legal knowledge, otherwise by a colleague who dares to be critical. Not your best friend. Not your father.

For the full implementation, also read our pillar post on drafting general terms and conditions, with the complete checklist and the seven-step plan.

The middle ground: draft it yourself, have it checked

For many SME entrepreneurs, this is the best of both worlds. You write the set that suits your work and language. A legal expert reviews it critically, fixes what is amiss, and ensures you do not unintentionally stumble upon the blacklist. The costs are generally lower than having a set drawn up from scratch — see the routes and amounts in costs of having general terms and conditions drafted.

Our honest recommendation: you may draft them yourself, but always have someone with legal knowledge review your set for a few hours before putting it into use. An approving look costs a fraction of what a single dispute can cost you. You can also have the terms and conditions fully drafted or reviewed by MKB Juristen; that starts from a few hundred euros.

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