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General terms and conditions only apply if you correctly provide them before concluding the agreement — but there is an exception: if the counterparty is already sufficiently familiar with the terms, this does not need to be done again each time. This “familiarity exception” has been confirmed by the Supreme Court. Nevertheless, providing them correctly remains the safest option, as familiarity is by no means always demonstrable. Below, you can read how this works and how to avoid disputes.
When do general terms and conditions apply?
For general terms and conditions to apply, they must be properly provided. This means that the counterparty must have the opportunity to inspect them before the agreement is concluded. You do not need to verify whether the counterparty has actually read them, but you must be able to demonstrate that you offered them the opportunity to do so.
That can be done in various ways:
- by physically handing over the terms and conditions;
- by sending them by email;
- under strict conditions by making them available on the company website.
What is the fame exception?
There is a so-called familiarity exception to the general rule: if the counterparty is already sufficiently familiar with the general terms and conditions and their content, you do not need to provide them again each time. The terms and conditions will still apply.
Supreme Court confirms the knowledge exception
A Supreme Court ruling concerns the application of this exception (ECLI:NL:HR:2022:1599). In that case, a supplier of animal feed raw materials and a purchaser entered into two purchase agreements, which referred to the Conditions of the Dutch Trade in Grains and Animal Feed Raw Materials (CNGD). Article 45 of the CNGD contains an arbitration clause.
When a conflict arose and the customer wished to take the matter to court, the supplier invoked the arbitration clause, claiming the court lacked jurisdiction. The customer argued that the terms and conditions had not been properly provided and that the clause was therefore invalid.
The Supreme Court emphasizes that the purchaser may invoke voidability if he was not aware — or could not be deemed to have been aware — of the clause. The relevant moment for assessment is the conclusion of the agreement. In this case, it could be assumed that the purchaser was indeed aware of the CNGD: the director had attended a Grain Course in which the CNGD and the arbitration clause were discussed extensively.
The Supreme Court therefore ruled that the arbitration clause is valid: the purchaser was sufficiently aware of the terms and conditions.
Why handing it over correctly remains wise after all
The outcome depended on specific circumstances — not everyone has taken a Grain Course. In most cases, you will not be able to demonstrate familiarity so easily. Therefore, always provide your terms and conditions correctly. Furthermore, when referring via a website, you must:
- refers to the terms and conditions on the document with a clear hyperlink;
- offers the customer the option to print or save the terms and conditions.
Additionally, consider filing your general terms and conditions.
Frequently Asked Questions
Do I have to provide my general terms and conditions again every time?
In principle, yes. This may be different only if the counterparty is sufficiently familiar with the terms and conditions (the knowledge exception). Because knowledge is difficult to prove, handing them over each time is the safest option.
What does “correctly hand over” mean?
That you offer the counterparty a reasonable opportunity to review the terms and conditions prior to concluding the agreement, for example by handing them over, by email, or via a clear link that can be printed or saved.
Does an arbitration clause in general terms and conditions apply?
That is possible, but the counterparty may invoke voidability if the conditions were not properly provided and he was unaware of the clause. If he was sufficiently aware, the clause may apply, as in the CNGD case.
Is referring to the terms and conditions on my website sufficient?
Only under strict conditions: there must be a clear hyperlink and the recipient must be able to save or print the terms and conditions. This may vary depending on the situation.
Want to properly arrange your general terms and conditions?
Whether your general terms and conditions hold up depends on both their content and the way in which you make them applicable. Therefore, have your terms and conditions and your working methods checked or drafted by a specialist.
Our contract law experts draft strong general terms and conditions and advise you on their correct provision. Schedule a no-obligation intake consultation .
