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A clause in general terms and conditions is unreasonably onerous if it unreasonably disadvantages the other party. The court can annul such a clause. For consumers, the law provides guidance with a black list (always prohibited) and a grey list (presumably prohibited).
What does unreasonably burdensome mean?
A clause is unreasonably onerous if, having regard to all circumstances, it disproportionately disadvantages the other party (Article 6:233 of the Dutch Civil Code). Financial disadvantage is not required. Whether a clause is unreasonably onerous is a matter of fact and therefore requires a case-by-case assessment — except where the law provides clear lists.
The blacklist: always forbidden
With respect to consumers, the clauses on the blacklist (Article 6:236 of the Dutch Civil Code) are always unreasonably burdensome. There can be no dispute about this, and counter-evidence is of no avail. If such a clause is included in your terms and conditions, it is voidable.
The grey list: presumably banned
The grey list (Article 6:237 of the Dutch Civil Code) contains clauses that are presumed to be unreasonably onerous. The burden of proof here lies with you as the user: you must demonstrate that the clause is indeed reasonable in your situation. If you fail to do so, the clause will be invalidated.
Does this also apply between companies?
The black and grey lists apply directly to consumers. Between businesses, they have an indirect effect (reflex effect), and the general test of Article 6:233 of the Dutch Civil Code applies. Consequently, business terms and conditions can also be invalidated if they go too far.
Frequently Asked Questions
What happens to an unreasonably onerous clause?
The judge can annul it. The clause then does not apply, while the rest of the conditions may remain in effect.
What is the difference between the black and grey list?
Conditions on the blacklist are always prohibited; with the grey list, there is a presumption that you can try to refute.
Do the lists also apply to business customers?
Directly only for consumers, but through the reflexive effect and the general test, business clauses can also be unreasonably burdensome.
Prevent your clauses from failing?
Our legal experts check your general terms and conditions against the black and grey lists with a terms and conditions scan. View our contract lawteam or schedule a free consultation.
