Which terms and conditions are prohibited?

In principle, all general terms and conditions are permitted, but some clauses are prohibited or voidable. The amount of protection you receive depends on who you are: large enterprises are barely protected, SMEs can invalidate unreasonably burdensome clauses, and consumers can also invoke the black and grey lists of (presumably) prohibited clauses.

Many companies use general terms and conditions, and subjecting them to a full legal review every time is impractical. As a result, consumers—but also small business owners without a legal department—run the risk of unpleasant surprises. Fortunately, the law protects them: some conditions are simply prohibited.

Large enterprises: little protection

The legislator considers large enterprises the least worthy of protection: they are expected to read terms and conditions carefully, possess expertise, and have sufficient bargaining power to prevent disadvantageous clauses. For them, freedom of contract applies above all. However, they can fall back on general civil law limits, such as the limiting effect of reasonableness and fairness. In addition, any clause is void if its content or purport is contrary to public order or good morals.

SMEs: voidable in the case of unreasonably onerous clauses

SMEs are in a weaker position and are therefore better protected: clauses are voidable if they are unreasonably burdensome. Whether this is the case depends on the circumstances — consider the nature of the agreement, the manner in which it was concluded, and the mutually known interests of the parties. The situation as a whole is therefore taken into account.

Consumers: the black and grey list

Private individuals are best protected. Like SMEs, they can invoke unreasonable onerousness and reasonableness and fairness — and, on top of that, the black and grey lists. The black list contains clauses that are always unreasonably onerous; the grey list contains clauses that are presumed to be so. An example from the black list is a clause that excludes the right to terminate the contract in the event of non-performance; a grey example is a longer notice period for the customer than for the supplier.

Also pay attention to proper delivery

Even legally valid general terms and conditions cannot be invoked if they have not been correctly declared applicable. Merely referring to the terms on your website is not always sufficient; this must be assessed on a case-by-case basis.

Frequently Asked Questions

Which terms and conditions are prohibited?

Clauses that are contrary to public order or good morals are void. Towards consumers, the clauses on the black list are always prohibited, and those on the grey list are presumably unreasonably burdensome.

Does the black and grey list also apply to entrepreneurs?

Not directly. SMEs can, however, invoke unreasonable onerousness and reasonableness and fairness; the black and grey lists apply primarily to protect consumers (sometimes with a ripple effect).

Are my terms and conditions valid if I only refer to them?

Not always. Terms and conditions must be correctly declared applicable and, in principle, made available. A mere reference to your website may be insufficient.

Assistance with drafting general terms and conditions

Good general terms and conditions take these protection rules into account, as well as proper provision. The legal experts at MKB Juristen draft them for you. Schedule a free consultation or view our expertise in contract law.