MKB Juristen drafts custom legal documents
It is best not to cobble together or copy important contracts, terms and conditions, and other legal documents yourself. We help entrepreneurs on a budget with customized legal solutions, clear costs upfront, and practical explanations.
- Custom contracts, terms and conditions, and legal documents
- Budget-friendly and clear about the costs upfront
- Request a free consultation or a no-obligation quote
Drafting terms of sale involves covering four sales-specific risks: payment, retention of title, warranty, and liability. Unlike general terms and conditions, the focus here is on the purchase agreement itself—that is, whether you receive payment on time and whether you are protected if a delivered product is defective. Below is a list of what should be included for each section, along with the legal articles that define the boundaries, ensuring your terms and conditions hold up.
The short answer
- Payment: installment, statutory commercial interest (Art. 6:119a BW) and collection costs.
- Retention of title: the item remains yours until full payment (Art. 3:92 BW).
- Warranty and conformity: what you promise and the limits thereof (Art. 7:17 BW).
- Liability: limit where permitted, especially in B2B.
- Presentation: arranging that the conditions are known before the purchase (Art. 6:233/6:234 BW).
Drafting terms of sale begins with the payment clause
Anyone wishing to draft terms and conditions of sale starts with payment, as that is where the greatest risk lies. Specify:
- Payment term. For example, 14 or 30 days. Between businesses, a term exceeding 60 days is generally not permitted (Art. 6:119a, paragraph 5 of the Dutch Civil Code).
- Consequence of late payment. The statutory commercial interest under Art. 6:119a of the Dutch Civil Code starts accruing automatically; specify from when.
- Collection costs. In B2B, you can negotiate a fixed percentage; for consumers, the statutory scale applies.
- Prepayment or security. Request a down payment or bank guarantee from new or large customers.
Properly formulate the retention of title clause
The retention of title (Art. 3:92 BW) is the clause that keeps you in effect in the event of the buyer's bankruptcy. Include at a minimum that ownership only transfers upon full payment of the relevant delivery. Consider an extended retention of title that also covers outstanding amounts from previous deliveries.
Note the limits. If the item is processed or resold, the reservation on that item generally lapses. For resale, you can stipulate a silent pledge on the resale receivable as additional security. Also formulate a right of repossession: in the event of default, you may collect the goods and set them off against the receivable.
Defining warranty and conformity
In the event of a sale, the goods must conform to the agreement (Art. 7:17 BW). You cannot exclude this statutory conformity for consumers, but you have more leeway with businesses. Rule:
- Own warranty. If desired, provide a commercial warranty with a term and clear exclusions (wear and tear, misuse, lack of maintenance).
- Complaint period. In commercial sales, you may stipulate that a complaint be made within a reasonable time after discovery (Art. 7:23 BW), with a specific period for visible defects.
- Return and repair. Describe the procedure: reporting, assessment, repair or replacement, and who bears the transport costs.
Limit liability
Between businesses, you may limit your liability. Common practice is to limit liability to the invoice amount or your insurance coverage, excluding indirect damage and consequential damage such as lost revenue. For consumers, such provisions are easily rendered ineffective based on the grey and black lists (Articles 6:236 and 6:237 of the Dutch Civil Code), so maintain a separate, more restrictive regime for that group.
Practical example: A manufacturer of packaging machines limits liability in its terms of sale to the invoice amount per order. Following a malfunction, a customer claims a major production stoppage. Due to this limitation, the compensation remains manageable instead of consequential damages ruining the manufacturer.
Ensure valid handover
The best terms and conditions are worthless if they do not apply. Pursuant to Articles 6:233 and 6:234 of the Dutch Civil Code, you must give the buyer a reasonable opportunity to review the terms and conditions, specifically before or at the time of concluding the purchase. In practice:
- Send the terms and conditions with the quotation and order confirmation, not just on the invoice.
- For online sales, make the terms and conditions visible and downloadable before placing the order.
- Refer to the terms and conditions on your documents and keep proof of shipment.
Honest recommendation
If you sell in small quantities against prepayment or to a handful of regular customers, you do not need to hire a lawyer: a brief payment agreement in your quotation is often sufficient. Drafting it yourself is also perfectly fine, provided you use a reliable template as a basis and fill in the core details properly. A lawyer becomes useful as soon as you deliver on credit on a regular basis, wish to work with retention of title and limitations of liability, or sell to businesses and consumers simultaneously.
The main pitfall when drafting it yourself: formulating the retention of title clause incorrectly or too restrictively, and failing to arrange for the delivery of the goods. In that case, your set lacks precisely the protection for which you are drafting it.
Read more: what are terms of sale, have terms of sale drafted , or view the terms of sale of MKB Juristen.
Frequently Asked Questions
At a minimum, a payment provision (term, commercial interest, collection costs), a retention of title clause, a warranty and complaints procedure, and a limitation of liability. In addition, a reference ensuring valid delivery. These are the four sales-specific risks plus the validity requirement.
Include a provision stating that ownership transfers only upon full payment of the delivery (Art. 3:92 BW). Consider an extended reservation for previous outstanding amounts and a right of repossession in the event of default. For resale, you can stipulate a silent pledge on the resale receivable.
This does not apply to consumers: the conformity requirement of Article 7:17 of the Dutch Civil Code is mandatory. With businesses, you have more leeway and can contractually limit warranties and complaint periods. You may always provide your own commercial warranty in addition to the statutory regulations.
Between businesses, it is common to limit liability to the invoice amount or insurance coverage, excluding consequential damages. The limitation must not be unreasonably burdensome or contrary to good faith. In the case of consumers, such provisions often fail under Articles 6:236 and 6:237 of the Dutch Civil Code.
Provide them before or at the conclusion of the purchase (Articles 6:233 and 6:234 of the Dutch Civil Code). Send them along with the quotation and order confirmation; for webshops, offer them as downloadable before the order is placed, and retain proof. Mentioning them only on the invoice is usually too late.
You can agree on a term yourself, for example 14 or 30 days. Without an agreement, 30 days applies to commercial transactions. A term exceeding 60 days between businesses is generally not permitted (Article 6:119a, paragraph 5 of the Dutch Civil Code), unless this is not manifestly unfair.
Better not. Consumers are mandatorily protected, so exclusions that are permitted for companies fail when dealing with consumers. Work with two sets or one set with a clearly defined consumer section, so that you have legally valid terms and conditions for both groups.
