Many companies use general terms and conditions , and legally analyzing all of them every time is an impossible task. As a result, consumers, as well as small business owners without an extensive legal department, are at risk of facing unpleasant surprises. Fortunately, the legislator is taking measures to protect them. After all, some conditions are simply prohibited.
Little protection for large enterprises
The legislator considers large enterprises the least worthy of protection. It is assumed that they always thoroughly review the general terms and conditions, possess the necessary expertise, and have the bargaining power to prevent disadvantageous clauses. Therefore, no rules have been made to protect them in particular, and freedom of contract simply applies.
Of course, they can invoke the classic limitations under civil law. An example of this is the limiting effect of reasonableness and fairness. Furthermore, all clauses are void if their content or purport is contrary to public order or good morals. A condition stating, for example, that your supplier may beat you up if you do not pay on time is prohibited.
Voidability in the case of unreasonably onerous clauses
SMEs are in a slightly weaker position and are therefore better protected. For SMEs, clauses are voidable if they unreasonably onerous . Whether or not a clause is unreasonably onerous must be examined on a case-by-case basis. In doing so, account must be taken of, among other things, the nature of the agreement, the manner in which the agreement was concluded, the mutually known interests of the parties, and the like. Thus, the whole picture is considered.
Grey and black list of prohibited clauses
Private individuals are best protected. Just like SMEs, they can invoke unreasonable onerousness and, of course, reasonableness and fairness. In addition, they can rely on the so-called black and grey lists . This is a list of provisions that are always unreasonable (black list) or are presumed to be unreasonable (grey list). Examples include the prohibition on terminating the agreement in the event of a breach of contract (black list) or the case where the supplier has a longer notice period than the private customer (grey list). You can read more about the black and grey lists and the way in which judgments are made regarding them in our previous blog.
Assistance with drafting general terms and conditions
Although in principle all general terms and conditions are permitted, there are exceptions intended to protect the weaker parties or to ensure a reasonable and fair solution. Naturally, you must take this into account when drafting general terms and conditions. Furthermore, you should be aware that even legally valid general terms and conditions cannot be invoked if they have not been correctly declared applicable. This may be the case if there is merely a reference to general terms and conditions on your website, but this must be examined on a case-by-case basis.
Do you need help drafting general terms and conditions? Schedule a free consultation and let one of our legal experts or lawyers assist you.
