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In the Netherlands, the first-shot rule applies in a 'battle of forms' between companies: the general terms and conditions of the party that first refers to its terms prevail — unless the other party expressly rejects them (Article 6:225, paragraph 3 of the Dutch Civil Code). A request for quotation can also constitute such a first reference.
What is the battle of forms?
If both parties refer to their own general terms and conditions, the question arises as to whose terms apply. That is the battle of forms. In the Netherlands, the party that referred to its terms first generally wins: the first shot rule.
The first shot rule
According to Article 6:225 paragraph 3 of the Dutch Civil Code, the conditions set out in the first document apply, unless the other party expressly rejects those conditions. A second reference in a later acceptance is therefore not sufficient to set aside the first; for that, the other party must actively reject the first conditions.
Also for a quotation request
The 'first reference' does not have to be the offer itself. If a purchaser already refers to their purchasing terms and conditions in their invitation to submit a quotation, that reference can count as the first shot. A supplier who subsequently refers only to their own terms and conditions without rejecting the purchasing terms and conditions may be bound by the purchasing terms and conditions.
This is how you win the battle of forms
Refer to your own terms and conditions as early as possible, and expressly reject the other party's terms and conditions — as a standard practice in every quotation and order confirmation. This prevents your customer's purchasing terms and conditions from applying to you.
Frequently Asked Questions
Whose terms apply if we both refer?
In principle, those of the first referrer (first shot), unless the other party expressly rejects those conditions (Article 6:225 paragraph 3 of the Dutch Civil Code).
Does a request for a quote count as the first shot?
Yes, if the purchaser already refers to his terms and conditions therein, that can be the first reference.
How do I waive conditions?
With an explicit clause stating that you do not accept the counterparty's terms and conditions, included in your own quotations and confirmations.
Want to strengthen your purchasing or sales terms and conditions?
Our legal experts draft your general terms and conditions and terms of delivery , including a non-disclosure clause. View our contract lawteam or schedule a free consultation.
