When Do General Terms and Conditions Apply Under Dutch Law?

Under Dutch law, General terms and conditions apply when three cumulative requirements are met: timely declaration of applicability before or upon contract conclusion, acceptance by the counterparty, and fulfillment of the information obligation by the user. These conditions apply according to Article 6:231 Dutch Civil Code (BW) o clauses used in multiple agreements without individual negotiation.

The applicability of general terms follows a strict legal procedure. For entrepreneurs in the Netherlands, correct implementation of these terms is essential, as errors in the process directly lead to loss of contractual protection. Therefore, we address below the three cumulative requirements that determine when your general terms and conditions become legally binding.

What Exactly Are General Terms and Conditions Under Dutch Law?

Article 6:231 sub a Dutch Civil Code (BW) defines general terms and conditions as one or more clauses drafted to be incorporated in multiple agreements. Importantly, this explicitly excludes clauses that define the core performances, provided these core clauses are formulated clearly and comprehensibly.

In practice, general terms contain standard provisions regarding payment conditions, delivery deadlines, transfer of risk, liability limitations, warranty claims, and applicable law. Moreover, arbitration clauses or forum selection typically appear in these terms. Entrepreneurs draft these clauses to create efficiency: without general terms, every contractual provision would require individual negotiation.

Statistical context: Research indicates that approximately 85% of all commercial transactions in the Netherlands are concluded under application of general terms and conditions. Nevertheless, an estimated 40% of SME entrepreneurs fail to comply correctly with all statutory requirements for applicability.

How Do You Declare General Terms and Conditions Applicable in Dutch Law?

Timely Declaration of Applicability Is Crucial

The first legal requirement concerns the timing when general terms are declared applicable. According to normal rules of offer and acceptance, general terms must form part of the contractual offer before the agreement materializes. Specifically, this means you must reference your terms in quotations, order confirmations, or other documents preceding contract conclusion.

A common mistake involves declaring general terms applicable only retrospectively. When terms appear exclusively on invoices, for example, the declaration of applicability typically occurs too late. Invoicing usually follows formation of the agreement. Consequently, in such cases, creditors cannot rely on their general terms.

Therefore, legal experts advise incorporating a standard phrase in all commercial documentation: “This quotation is subject to the general terms and conditions of [company name], deposited with the Chamber of Commerce under number [X].” This explicit reference creates legal clarity from the initial contact moment.

Clarity With Multiple Sets of Terms

Does your business use different types of general terms? For instance, separate purchasing conditions, delivery conditions, and service conditions? Then you must explicitly indicate which terms apply to which part of the agreement. Ambiguity in this regard leads to legal uncertainty and can result in none of the terms being applicable.

What Role Does Acceptance by the Counterparty Play in the Netherlands?

Rapid Binding According to Article 6:232 Dutch Civil Code

The second requirement concerns acceptance by the counterparty. An important legal principle applies here: for acceptance, it suffices that the counterparty knows or ought to know that general terms form part of the agreement. This is called the principle of “rapid binding.”

This means the counterparty need not actually take notice of the content of the general terms to be bound by them. A simple reference in the agreement to general terms is in principle sufficient for binding force. This rule protects efficiency in commercial transactions.

Express Versus Implied Acceptance

Acceptance can occur in two ways:

Express: The counterparty signs the agreement referencing the general terms, or ticks a checkbox in online transactions. This explicit declaration of intent offers the strongest evidentiary position for entrepreneurs.

Implied: The counterparty does not protest against applicability of the general terms and executes the agreement. For example, by making payment or accepting delivered goods. This implied acceptance is also legally binding.

To prevent evidentiary problems in disputes, it is always advisable to have agreements signed in writing. A lawyer in the Netherlands will routinely advise organizing demonstrable acceptance when providing contract advice.

Why Is the Information Obligation So Important in Dutch Jurisdiction?

Main Rule: Physical Delivery

Article 6:234 BW establishes an information obligation counterbalancing the rapid binding to general terms. This information obligation requires the user to provide the counterparty with a reasonable opportunity to take notice of the general terms before or upon concluding the agreement.

The main rule states that general terms must be physically delivered. This can be achieved by:

• Actual handover of a paper copy
• Addition as an attachment to a written quotation or contract
• Electronic transmission as a PDF file via email (provided the counterparty has explicitly consented to this method in advance)

Is physical delivery reasonably impossible? Then you may suffice with a reference to the location where the terms are deposited. For example, at the Chamber of Commerce or the court registry. However, you must always state that the terms will be sent free of charge upon request.

Electronic Agreements: Specific Requirements

For agreements concluded electronically, adapted rules apply. The general terms must then be made available in a manner enabling the counterparty to easily store and consult them later. Specifically, this means:

• Publication on a directly accessible webpage via a clear hyperlink
• Possibility to download in PDF format
• No restrictions on printing or saving the terms

A reference to only your website’s homepage does not suffice. The counterparty should not have to search for the general terms themselves. The link must lead directly to the complete text.

How Does the Lighter Information Obligation Work for Service Providers Under Dutch Law?

Article 6:230c BW: Four Alternatives

For service providers – any natural person or legal entity offering a service – a lighter regime applies according to Article 6:230c BW. A service provider can choose to fulfill the information obligation through one of four methods:

Method 1: Physical delivery (traditional method)

Method 2: Providing access at the location where the service is performed or the agreement is concluded

Method 3: Publication on a communicated web address, whereby the counterparty has direct access to the terms

Method 4: Including with documents describing the service

Particularly the second and third methods offer substantial relief compared to the usual delivery obligation. For lawyers, consultants, IT companies, and other service providers in Amsterdam, this means they can suffice with stating a URL where the general terms are published.

Important: With electronic availability, the counterparty must be able to save the terms. A non-downloadable display does not meet statutory requirements. Furthermore, you must explicitly communicate the URL; the counterparty should not have to search themselves.

When Does the Information Obligation Not Apply According to Dutch Legislation?

Exception for Large Counterparties

The information obligation does not apply to so-called “large counterparties.” These are:

Category 1: Legal entities as referred to in Article 2:360 BW (private limited company, public limited company, cooperative, or mutual insurance society) that have actually published their latest annual accounts at the moment of contract conclusion.

Category 2: Counterparties where, at the moment of contract conclusion, 50 or more employees work for more than 15 hours per week, or 50 employees are registered in the trade register.

The rationale behind this exception is clear: large counterparties possess sufficient bargaining power and expertise to protect themselves against unreasonable contract terms. No special protection need exists for them.

Practice example: An entrepreneur from Amsterdam concludes a supply agreement worth €75,000 with a private limited company that has published its annual accounts and employs 120 staff members. In this case, the supplier need not physically deliver his general terms. A simple reference in the quotation suffices for applicability.

What Happens Upon Non-Compliance With the Information Obligation in the Netherlands?

Voidability of General Terms

Do you fail to comply with the information obligation? Then your general terms are voidable pursuant to Article 6:234 BW. This means the counterparty can invoke nullification, after which the terms lose their binding force.

The power to nullify is only available to:

• Private individuals (consumers)
• Small entrepreneurs (sole proprietorships, partnerships, small private limited companies without published annual accounts)

Large counterparties cannot invoke nullification due to violation of the information obligation. However, they can in exceptional cases rely on general doctrines of reasonableness and fairness.

Legal consequence: If your counterparty successfully nullifies the general terms, you fall back on the statutory provisions of the Dutch Civil Code. You thereby lose all specific protections from your terms, such as liability limitations, retention of title, or an arbitration clause.

How Do You Ensure Your General Terms Are Legally Sound Under Dutch Law?

Practical Implementation Tips

Tip 1: Always send your general terms with quotations, either on paper or as a PDF file. Avoid merely referring to a website without actually attaching the terms.

Tip 2: Place general terms on a directly findable location on your website, preferably in the footer with a clear “General Terms and Conditions” link. Ensure the terms are downloadable as PDF.

Tip 3: Include a standard clause in all your commercial documentation: “This agreement is subject to the general terms and conditions of [company name], as deposited with the Chamber of Commerce under number [deposit number].”

Tip 4: For online transactions, place a clear checkbox with the text: “I declare that I have read and accept the general terms and conditions” with a direct hyperlink to the complete text behind it.

Tip 5: For physical agreements, you can print the general terms on the reverse side of the order form or contract, with an explicit signature line for approval.

Deposit: Useful or Not?

You can have your general terms deposited with the Chamber of Commerce (€21.70 per calendar year) or with the court (€134 one-time in 2025). Deposit is not mandatory for applicability, but offers two advantages:

Evidentiary advantage: You can precisely demonstrate which version of your terms applied at the moment of contract conclusion. This prevents discussions about modifications.

Reference possibility: In case physical delivery is impossible, you can legitimately refer to the deposit number. This satisfies the statutory information obligation.

With each modification, you must submit the new version in its entirety again and pay the fee again. For entrepreneurs with regularly changing terms, this can become costly.

Which General Terms Apply With Conflicting Terms in the Netherlands?

The Battle of Forms Problem

In commercial transactions, it frequently occurs that both parties use their own general terms. The supplier refers in his quotation to his delivery conditions, while the buyer refers in his order to his purchasing conditions. This situation is called the “battle of forms.”

The question of which terms apply is determined by the moment of declaration of applicability and acceptance:

Rule 1: The general terms declared applicable first and accepted by the counterparty generally prevail.

Rule 2: If both parties have declared their terms applicable in time and neither set has been explicitly accepted, it may be that neither set fully applies. The court must then assess per clause which terms govern.

Rule 3: An explicit last-minute rejection of the counterparty’s terms can in certain circumstances lead to applicability of your own terms, provided these were communicated in time.

To prevent this legal uncertainty, it is advisable to explicitly establish contractually which general terms apply. For example, by including a clause: “Parties agree that exclusively the general terms and conditions of [supplier] apply to this agreement. The applicability of any general terms and conditions of the buyer is hereby expressly excluded.”

Do you want certainty about the applicability of your general terms? Our specialized lawyers in Amsterdam analyze your current contract documentation and advise on optimization of your declaration of applicability and information provision processes.

What Is the Difference Between Acceptance and Taking Notice Under Dutch Law?

Legal Separation Between Two Concepts

An important distinction exists between acceptance of the applicability of general terms and taking notice of their content. This distinction is often misunderstood.

Acceptance concerns the question whether the counterparty agrees that general terms form part of the agreement. For this, it is not required that the counterparty knows the content. A reference in the agreement suffices.

Taking notice concerns the question whether the counterparty had the opportunity to read the specific content of the terms. This is relevant for the information obligation.

According to Article 6:232 BW, for the binding force of general terms, it is merely required that the counterparty knew or ought to have known that general terms formed part of the contract. The counterparty need not have known the content. This rule protects legal certainty in commercial transactions.

However, violation of the information obligation – thus not offering a reasonable opportunity to take notice – leads to voidability. Although the terms are thus initially binding, the counterparty can still nullify them due to lack of opportunity to take notice.

How Does the Court Test Unreasonably Onerous Clauses in the Netherlands?

Protection of Small Counterparties

Besides the information obligation, the law offers protection against unreasonably onerous clauses in general terms. However, this protection only applies to:

• Private individuals (consumers)
• Small entrepreneurs without published annual accounts and with fewer than 50 employees

These counterparties can nullify individual clauses if these are “unreasonably onerous” considering all circumstances of the case. This involves a separate test besides the applicability requirements.

Black List and Grey List

The legislator has included two lists in Articles 6:236 and 6:237 BW:

Black list (Article 6:236 BW): Clauses that are always considered unreasonably onerous in consumer agreements. These are directly voidable. Examples: clauses preventing consumers from exercising their statutory rights, or unreasonably aggravating the burden of proof.

Grey list (Article 6:237 BW): Clauses presumed to be unreasonably onerous. The user must rebut this presumption. Examples: clauses giving the user the power to unilaterally modify the agreement, or containing unreasonably long termination periods.

Clauses not appearing on these lists can also be nullified as unreasonably onerous. However, the counterparty must then demonstrate that the clause is unreasonably onerous under all circumstances.

What Does This Mean for B2B Agreements Under Dutch Law?

Limited Protection for Entrepreneurs

In business-to-business (B2B) agreements between two companies, the specific regulation of general terms offers limited protection. Articles concerning unreasonably onerous clauses (black and grey lists) only apply to consumers.

For business parties, the general reasonableness and fairness principle pursuant to Article 6:248 BW remains applicable. A clause that is unacceptable by standards of reasonableness and fairness can be moderated or set aside by the court.

However, the test is much less strict than for consumer agreements. The court sometimes assumes a certain reflexive effect of consumer protection for small entrepreneurs, but this remains case-specific. For medium-sized and large companies, they are deemed capable of looking after themselves.

Practical consequence: As an entrepreneur in Amsterdam doing business with other companies, you must therefore have your contract documentation carefully reviewed. Do not be deterred by your counterparty’s general terms, but study them thoroughly or have them reviewed by a specialized lawyer before signing an agreement.

What Strategy Do You Use With Unequal Bargaining Positions in the Netherlands?

Utilizing Negotiation Room

In practice, sometimes considerable power differences exist between contracting parties. A large buyer can demand that exclusively his purchasing conditions apply, while a small supplier has hardly any negotiation room.

In such situations, the following strategies are possible:

Strategy 1: Negotiate the most onerous provisions. Often, a large buyer is willing to adjust specific clauses, for example regarding liability or payment terms.

Strategy 2: Include deviating provisions in the specific agreement. If the general terms are too onerous, you can explicitly deviate from specific clauses in the main agreement.

Strategy 3: Record all arrangements in writing in the main agreement. In case of conflicts between the main agreement and general terms, usually the main agreement prevails.

Strategy 4: Contact an industry organization. Model terms exist for many sectors that contain a balanced consideration of interests. Examples include the ALIB terms for the ICT sector or the DNR 2011 for transport.

Contact our law firm in Amsterdam for personal legal advice about your specific situation. We assess your counterparty’s general terms and advise on negotiation strategies that optimally protect your interests.

How Do You Keep Your General Terms Current According to Dutch Legislation?

Regular Evaluation and Adjustment

Legislation, case law, and business processes change constantly. General terms drafted ten years ago may no longer meet current legal standards. Therefore, regular evaluation is essential.

Points of attention for evaluation:

• New legislation affecting your sector (for example, GDPR for data protection)
• Recent case law on interpretation of specific clauses
• Changes in your business model or service provision
• Adjustments in industry standards or model terms
• Experience with disputes where certain clauses proved unclear

Legal experts advise having general terms reviewed by a specialized lawyer at least once every three years. With substantial changes in your business or legislation, immediate adjustment is necessary.

Transitional Arrangement Upon Modification

Note: if you modify your general terms, the new terms only apply to agreements concluded after the modification. Existing agreements remain subject to the old terms, unless you explicitly agree with your counterparty that the new terms also apply to existing agreements.

For ongoing relationships, you can include a modification clause in your general terms, whereby you reserve the right to unilaterally modify the terms. However, such clauses are legally complicated and can be characterized as unreasonably onerous. Always consult a lawyer before implementing a modification clause.

Conclusion: Three Steps to Legal Certainty in the Netherlands

The applicability of general terms depends on three cumulative requirements: timely declaration of applicability, acceptance by the counterparty, and fulfillment of the information obligation. Each of these steps requires careful attention in your daily business operations.

For entrepreneurs, this means general terms only have legal value when correctly implemented in all commercial processes. A well-drafted text is worthless without correct application. Conversely, correct application of mediocre terms also offers insufficient protection.

The combination of qualitatively strong general terms and professional implementation forms the basis for contractual certainty. In approximately 75% of business disputes in the Netherlands, general terms play a crucial role. Investment in legal advice about your terms therefore delivers directly measurable risk reduction.