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What is a general terms and conditions scan? A general terms and conditions scan is a legal review of your existing general terms and conditions regarding validity, provision, prohibited clauses, and currency. A legal expert checks whether your terms and conditions are still legally sound and whether they actually provide protection in practice — or whether you are effectively relying on statutory regulations because a clause is voidable or was not presented in time.
The short answer
- What: a check of your current general terms and conditions for legal validity and enforceability.
- Based on: validity of clauses, delivery, prohibited/voidable clauses and current status (law and case law).
- Why: Outdated or incorrectly presented terms and conditions offer a false sense of security.
- Who: a legal expert or lawyer with experience in contract law.
- Result: a list of risks, areas for improvement, and an assessment of whether adjustment is necessary.
What exactly is a general terms and conditions scan?
A scan is not drafting a new document, but an assessment of what you are already using. The legal expert reads your terms and conditions line by line and tests them against three things: the law (particularly Book 6 of the Dutch Civil Code), case law regarding unreasonably onerous clauses, and the way in which you offer the terms and conditions in practice.
The difference compared to drafting is important. When drafting, you start from scratch; with a scan, you work with existing text and see where it falls short. For many SME entrepreneurs who have at some point adopted or downloaded a set of terms and conditions, a scan is the logical first step.
What is tested?
A good scan examines four layers:
- Validity of clauses. Are limitation of liability, payment terms, and termination clauses legally defensible?
- Provision. Do you offer the terms and conditions before or at the time of concluding the agreement? Otherwise, they are voidable.
- Prohibited and voidable clauses. The black and grey lists (Articles 6:236 and 6:237 of the Dutch Civil Code) apply particularly to consumers.
- Current status. Do the terms and conditions still align with current law and your current services?
Delivery — the most missed requirement
The content may be perfect, but if you do not provide the terms and conditions on time, the customer can invalidate them. In that case, the statutory regulations apply instead of your terms and conditions — exactly the opposite of what you wanted.
Providing means: making the terms and conditions available before or at the latest upon the conclusion of the agreement. A reference on the invoice afterwards is too late. For online contracting, additional rules apply to electronic provision. A scan therefore looks not only at the text, but also at your process: quotation, order confirmation, website.
Prohibited clauses for consumers
If you supply goods or services to consumers, stricter rules apply. Certain clauses are on the black list (always unreasonably burdensome, Art. 6:236 BW) or the grey list (presumably unreasonably burdensome, Art. 6:237 BW). Examples include an overly broad exclusion of liability or an unreasonably long notice period.
If such a clause is included in your terms and conditions, the consumer can invalidate it — and nowadays, the court also reviews this ex officio. A scan detects these clauses and indicates which ones must be amended or deleted.
Current affairs and case law
Terms and conditions become outdated. Legislation changes, case law shifts, and your own services evolve. A set from 2015 may contain provisions that no longer hold up, or refer to repealed regulations.
Practical example. An installation company had been using the same terms and conditions for years. The scan revealed that the liability clause was too broad for consumer jobs and that the terms and conditions were only listed on the website, not with the quotation. After adjusting the text and the quotation process, the protection was once again comprehensive.
Honest recommendation
A scan is advisable if your existing terms and conditions are already a few years old, if you have started supplying to a new target group (for example, consumers in addition to business clients), or if you doubt whether you are offering them correctly. Legal knowledge is required to detect voidable clauses and errors in the delivery of the terms.
When do you *not* need a lawyer? If your terms and conditions have recently been drafted by a lawyer, your target audience and services remain unchanged, and your process (terms included in the quotation) is demonstrably correct, you can safely postpone a scan for a year. Do not confuse that with “never looking again”.
Read more: view the general terms and conditions for the scan, or read about what is included in a scan and about the costs and process of having a scan performed.
Frequently Asked Questions
A legal review of your existing general terms and conditions for validity, provision, prohibited clauses, and currency. A legal expert assesses whether your terms hold up legally and whether they actually provide protection in practice, and indicates which adjustments are necessary.
When drafting, you create new terms and conditions from scratch. With a scan, you check existing terms and conditions you are already using for errors and outdated provisions. For entrepreneurs with an existing set, a scan is usually the logical first step.
If you do not offer the terms and conditions before or at the time of concluding the agreement, the customer can invalidate them. In that case, the statutory regulations apply instead of your terms and conditions. A reference only on the invoice is too late. A scan therefore also checks your offer process.
For consumers, the black list (always unreasonably burdensome, Art. 6:236 BW) and the grey list (presumably unreasonably burdensome, Art. 6:237 BW) apply. The consumer can invalidate clauses on these lists. A scan identifies them and advises on adjustment or deletion.
Rule of thumb: every two to three years, or sooner in the event of legislative changes, a new target group, or changed services. Terms and conditions become outdated due to changing legislation and case law, even if the text itself does not change.
Not always. Sometimes it turns out that the terms and conditions are still correct and only the offer process needs improvement. More often, however, areas for improvement emerge, such as an overly broad liability clause or a voidable consumer clause. The scan provides a concrete assessment.
Detecting voidable clauses and errors in the terms and conditions requires legal expertise. If your terms and conditions have recently been drafted by a lawyer and the target audience, services, and process remain unchanged, you can safely postpone a scan for the time being.
