When are general terms and conditions not valid?

General terms and conditions are not valid — or rather, they can be invalidated — if you have not provided them to your customer in time, if they are unreasonably burdensome to a consumer, or if they are written in such intoxicating language that no one can make head or tail of them. That sounds strict, but in practice, many entrepreneurs stumble primarily over the first point.

Piet the plasterer knows all about it. He had sound terms and conditions, or so he thought. Until a customer refused to pay €9,000, and his limitation of liability evaporated like snow in the sun. In this article: the legal basis (voidable versus void), the three main reasons why terms and conditions fail, what to do if yours have given way, and, above all, how to prevent it from getting to that point.

The short answer: voidable or void?

The law has two varieties of “invalid”. The difference is no word game — it determines whose turn it is.

• Voidable means that the terms and conditions apply in principle until your client actively invokes them. If he does so, they are retroactively null and void. This is the most common form.
• Void means that the clause ceases to exist by operation of law. No one needs to invoke anything; it is simply gone.

For you as an entrepreneur, it amounts to the same thing: the clause you were counting on is suddenly no longer there. However, it is relevant in legal proceedings, because in the case of a voidable clause, you must be able to demonstrate that and when it was voided.

Reason 1: not handed over (on time)

This is by far the most common reason why general terms and conditions are voidable. The law (Articles 6:233 and 6:234 of the Dutch Civil Code) states that you must give your customer a reasonable opportunity to review the terms and conditions before or at the time of concluding the agreement.

In concrete terms, that means:

• On paper: hand them over, or send them along with the quotation.
• Online: present them so the customer can save them, for example as a downloadable PDF before checkout. Not just a “click here” link in four mouse clicks, but actually available at closing.

Do you only send them along with the invoice? Too late. Do you only mention them on your website without a reference in the quotation? Too weak. A common misconception is that filing with the Chamber of Commerce or the court replaces the duty to provide information. That is not the case. Filing is a useful piece of proof of what existed on a specific date, but it does not relieve you of the obligation to hand them over. For practical errors, also read the hassle of dealing with the applicability of general terms and conditions twice.

The irony: the clause you reach for in a dispute — often that nice limitation of liability clause — is precisely the clause your client is eager to have annulled. And if you cannot prove that you handed over the terms and conditions properly, he will succeed in doing so.

Reason 2: unreasonably burdensome (black and grey list)

Additional rules apply to sales to consumers. The law provides for two lists:

• The blacklist (Article 6:236 of the Dutch Civil Code) — clauses that are always unreasonably onerous and therefore void with respect to consumers. Examples include the complete exclusion of liability, or an unlimited power to unilaterally raise prices.
• The grey list (Article 6:237 of the Dutch Civil Code) — clauses presumed to be unreasonably onerous. You can rebut the presumption, but you are backed into a corner. Examples: short complaint periods, unusually far-reaching penalties.

You can find a handy overview of what consumers can expect at the ACM's ConsuWijzer. Conclusion: B2C terms and conditions are a different beast than B2B terms and conditions. If you sell to consumers, do not simply copy a set written for business customers.

Reason 3: illegible, unclear or contrary to the law

Terms and conditions must be understandable. A clause consisting of four sub-clauses of forty words each, from which the average reader gives up halfway through, can be interpreted to the detriment of the person who drafted it (the so-called contra proferentem rule). Clauses that are outright contrary to mandatory law—for example, shortening or excluding the right of withdrawal for consumers—are also invalid, no matter how well written.

A third category: terms and conditions that you have blindly copied from another entrepreneur and that do not fit your work in essential respects. Not necessarily invalid, but worthless at the moment you need them. We previously wrote about the risks of copy-and-paste contracts; this applies doubly to general terms and conditions.

B2B: limits apply in business relationships as well

“We only sell to businesses, so anything goes” is a persistent misconception. That is not entirely correct. While the black and grey lists do not apply directly to B2B, small business owners and certain foundations can sometimes invoke comparable protection through the so-called reflex effect . And the open standard of Article 6:233(a) of the Dutch Civil Code—not unreasonably burdensome, assessed against the circumstances—applies without question in B2B.

Practical: extremely one-sided clauses against the self-employed counterparty or the small general partnership can fail more than you think.

Battle of forms: whose terms apply?

Sometimes the question is not whether your terms and conditions are valid, but whether they apply at all. What if you send your terms and conditions along and the customer refers to *their* terms and conditions in their order confirmation?

The law (Article 6:225 paragraph 3 of the Dutch Civil Code) states that in that case, the first-mentioned conditions apply, unless the other party expressly rejects them. It sounds simple, but in practice, this is precisely where things often go wrong: a vague “under our conditions” without actual reference or delivery does not count as a rejection. Being first and delivering first prevails.

What do you do if your general terms and conditions turn out to be invalid?

Bad news: if a clause fails, you fall back on the law. And the law is often less favorable for entrepreneurs than your own agreements. No limitation of liability? Then you are fully liable for damages. No interest or collection clause? Then the statutory time limits apply, and you cannot charge more than the statutory commercial interest.

Three things to do immediately:

1. Do not try to fix an ongoing conflict yourself. What you write down or send afterwards will rarely retroactively repair what is already wrong. Bring in someone who can assess the situation objectively.
2. Have a lawyer scrutinize your set. A proper check will reveal within an hour or two what is rotten below the waterline and what is worth saving. Often, it involves a handful of clauses, not the entire set.
3. Provide your new set starting with the next quotation. For existing customers, you can announce a new version; for new customers, the counter starts at zero.

Honest recommendation: it is almost always cheaper to have a lawyer draft or review a decent set once, than to discover in a dispute that they do not hold up. For the processes and prices, read what drafting general terms and conditions costs.

Prevention is cheaper than destruction

Three game rules that save you a lot of trouble:

• Refer to your general terms and conditions in your quotation, order confirmation, and invoice. Three times is not overkill, but the preferred practice.
• Send the terms and conditions as an attachment or as a downloadable PDF — not just as a link, and not only afterwards.
• Do you have B2C clients? Work with a separate consumer set. Skipping the same document for both target groups is asking for trouble.

Do you want the assurance that your set passes this test? Have your general terms and conditions drafted or reviewed by a lawyer who knows SME matters inside out. You can find the practical guide for drafting them in our pillar post on drafting general terms and conditions.

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