Battle of Forms in General Terms and Conditions Under Dutch Law: How Does It Work?

Published on 14 December 2025 · Last updated 24 October 2026

The battle of forms arises when buyer and seller each refer to their own general terms and conditions (algemene voorwaarden). Under Dutch law, the first reference prevails: the second reference has no effect unless it expressly rejects the first set of terms (Article 6:225(3) Dutch Civil Code). This is the first shot rule. Below we explain how to deal with conflicting GTC’s in the Netherlands.

The battle of forms in the Netherlands regularly plays out in commercial transactions. Business owners often maintain their own general terms and conditions containing favorable provisions for their enterprise. Purchase conditions typically include strict delivery deadlines and broad liability for the seller. Delivery conditions, conversely, maximize limitation of the seller’s liability and maintain flexible delivery arrangements.

Many commercial disputes involve discussion about which general terms and conditions apply. Parties dedicate insufficient attention during the negotiation phase to proper application of general terms and conditions. Only when a dispute arises does the question surface regarding which set of conditions holds legal validity.

What Does the First Shot Rule Under Dutch Law Precisely Entail?

The first shot rule under Dutch law means the general terms and conditions referenced first in contract formation remain valid, unless the second party expressly rejects them.

Article 6:225(3) of the Dutch Civil Code explicitly states that the second reference has no effect, protecting the initial declarer’s position in commercial negotiations.

The Dutch legislator incorporated a clear rule in Article 6:225(3) of the Dutch Civil Code for situations where offer and acceptance reference different general terms and conditions. According to this provision, the second reference carries no effect. The general terms and conditions declared applicable first remain valid. Business owners call this principle the first shot rule. However, this rule operates with one important exception: when the second party expressly rejects the applicability of the first general terms and conditions, the second party’s general terms and conditions may still apply.

Courts apply this exception strictly. The Supreme Court (Hoge Raad) held that the rule also applies when the first reference was made in an invitation to make an offer, such as a request for a quotation (ECLI:NL:HR:2001:ZC3632). A standard clause stating that only your own terms apply is an implied rejection at most, not an express one: it must be clear that other terms are rejected and which terms are rejected (Court of Appeal ‘s-Hertogenbosch, ECLI:NL:GHSHE:2014:748). The law prescribes no fixed wording, but the three elements below make a rejection hard to challenge.

How Do You Expressly Reject General Terms and Conditions in the Netherlands?

In practice, an express rejection should name your counterparty, refer directly to the general terms you reject, and declare your own terms applicable in the body text. A preprinted clause in a footer or margin is generally not enough under Article 6:225(3) Dutch Civil Code.

Express rejection demands more than a standard clause in your own general terms and conditions. We recommend including three elements in your rejection:

Mention your counterparty’s name explicitly
Reference directly the general terms to be rejected
Declare the applicability of your own conditions in the main text

Place the rejection in the body of your correspondence, not in a footnote or appendix. A formulation such as “We hereby expressly reject the general terms and conditions of [counterparty name] and declare our general terms and conditions applicable” will normally meet the requirement of an express rejection. This direct approach to the counterparty prevents ambiguity and protects your legal position.

When you fail to respond timely to the declaration of applicability of your counterparty’s general terms and conditions, you risk these conditions becoming applicable. The first referrer must also take action when the second party expressly rejects the first conditions. Otherwise, the second reference emerges as the winner from the battle.

Which General Terms Apply Under Dutch Law During Mutual Rejection?

When both parties expressly reject each other’s terms, Article 6:225(3) of the Dutch Civil Code no longer decides the matter. Each reply that deviates from the previous offer counts as a new offer (Article 6:225(1)).

Acceptance depends on concrete conduct and communications of the counterparty, which courts assess casuistically throughout the contractual relationship.

Sometimes both parties expressly reject each other’s general terms and conditions. In that case, Article 6:225(3) does not resolve the conflict. Each deviating reply is a rejection of the earlier offer and a new offer (Article 6:225(1)). The question is then which offer was accepted last, for example by confirming it or by starting performance. If a new offer including the other party’s terms is accepted, those terms apply (Court of Appeal Arnhem-Leeuwarden, ECLI:NL:GHARL:2020:3373). Whether an offer is accepted depends on the concrete conduct and communications of the parties.

A practice example clarifies this situation. A supplier from Amsterdam sends a quotation referring to his delivery conditions. The buyer accepts, expressly rejects the delivery conditions and declares his purchase conditions applicable. The supplier then explicitly rejects the purchase conditions in his order confirmation. If the buyer does not object and accepts the delivered goods, a court may find that he accepted the supplier’s last offer, including the delivery conditions. If the buyer objects again, the outcome depends on what happened next. Courts assess these situations case by case, based on the parties’ conduct throughout the relationship.

Because the second reference has no effect unless it contains an express rejection, the party that refers to its terms first is often in the stronger position. This shows the strategic importance of a proactive approach to general terms and conditions.

What Happens Without Express Rejection in Dutch Law?

Without express rejection, the first referrer’s general terms and conditions remain applicable under Article 6:225(3) Dutch Civil Code, provided they were validly accepted as part of the contract (Article 6:231(c)).

This rule emphasizes the importance of speed in the contractual phase, where early reference to your conditions provides protection against later references by the buyer.

Business owners often fail to realize that both parties reference their own general terms and conditions. Without express rejection, the first referrer’s general terms and conditions remain applicable. This rule highlights the importance of speed in the contractual phase. Therefore, reference your general terms and conditions as early as possible in your quotation or order. A supplier who references his conditions during the quotation phase enjoys protection against later references by the buyer.

As the case law cited above shows, courts apply the requirement of an express rejection strictly. Consequently, proactive handling of general terms and conditions prevents disputes and strengthens your negotiating position substantially.

How Does Battle of Forms Differ Across Jurisdictions?

The Dutch first shot rule applies only when Dutch law governs the agreement. Other legal systems use different rules: German law generally applies the knock-out rule, under which only matching provisions apply. Under the Vienna Sales Convention (CISG), opinion is divided between the last shot rule and the knock-out rule.

The Dutch first shot rule applies exclusively when Dutch law governs the agreement. For international contracts, you must account for different regimes. The Rome I Regulation (Regulation (EC) No 593/2008) determines which law governs the agreement when parties have not made a choice of law. According to Article 4(1)(a) of the Rome I Regulation, the law of the country where the seller has his habitual residence applies for sales agreements.

German law, for example, generally applies the knock-out rule. This rule means general terms and conditions only apply insofar as they correspond substantively. Conflicting provisions do not form part of the agreement. For the missing subjects, parties fall back on supplementary law. A Dutch supplier contracting with a German buyer must therefore check which law governs: if German law applies, his exoneration clause may not apply when it conflicts with the liability provision in the German purchase conditions; under the CISG the outcome is uncertain.

Would you like certainty about your legal position for international contracts? Our specialized lawyers in Amsterdam analyze your situation and advise on the best strategy for making your general terms and conditions applicable in cross-border commercial relationships.

What Role Does the Vienna Sales Convention Play in International Sales?

The Vienna Sales Convention (CISG) applies to sales of goods between parties established in different contracting states, unless excluded. It contains no specific battle-of-forms rule. The CISG Advisory Council (Opinion No. 13, Rule 10) favours the knock-out rule, but some courts and authors apply the last shot rule.

The Vienna Sales Convention (CISG) applies to contracts for the sale of goods between parties whose places of business are in different contracting states (Article 1 CISG). Sales of goods for personal or household use are in principle excluded (Article 2(a)). The convention contains no specific rule for the battle of forms. Under Article 19 CISG, a reply that purports to be an acceptance but materially changes the offer is a counter-offer, and terms on liability and dispute settlement are considered material. A strict reading therefore leads to the last shot rule: the last reference to general terms and conditions that is accepted, for example by performance, would be decisive. That is the opposite of the Dutch first shot rule.

However, the CISG Advisory Council, an international expert group on the convention, takes a different approach. In Opinion No. 13 (2013), Rule 10, it chose the knock-out rule. Standard terms that are common in substance apply; conflicting terms drop out and are replaced by the applicable default rules. The Opinion notes that most commentators and court decisions favour the knock-out rule, although the last shot rule also has support. The Advisory Council’s opinions are not binding, so the outcome under the CISG remains uncertain.

An example illustrates this problem. A Dutch seller and a German buyer have both excluded the CISG in their general terms and conditions (which Article 6 CISG allows). Because both sets of conditions match on this point, a court applying the knock-out approach would hold the CISG excluded. On liability for damages, the two sets of conditions conflict. If the CISG is excluded and Dutch law governs, Article 6:225(3) Dutch Civil Code decides which of the conflicting liability provisions applies: in principle those of the party that referred to its terms first. In the absence of a valid choice of law, Dutch law then governs as the law of the seller’s habitual residence (Article 4(1)(a) Rome I).

What Does Delivery Mean for Applicability in Dutch Law?

Under Article 6:234 of the Dutch Civil Code, you must give the counterparty a reasonable opportunity to read your terms, as a rule by providing them before or at the conclusion of the contract.

You can do this by sending the full text, or electronically in a form that can be stored. Making the terms available for inspection is only an alternative if providing them is not reasonably possible.

The battle of forms only addresses which general terms and conditions apply. Separately, you must give the counterparty a reasonable opportunity to read your terms (Article 6:234). If you refer to your terms but do not provide them, the counterparty can in principle annul (vernietigen) the clauses (Article 6:233(b)). The first shot rule does not help you then. There are important exceptions. A company that has published its most recent annual accounts (including a small private limited company that files them) and a party with 50 or more employees cannot rely on this ground (Article 6:235(1)). Nor can a counterparty who knew, or could be expected to know, the clause when the contract was concluded (Supreme Court, ECLI:NL:HR:1999:ZC2977). And between businesses that are not both established in the Netherlands, these rules on general terms do not apply at all (Article 6:247(2)).

Delivery means you provide the counterparty a reasonable opportunity to review the conditions. You accomplish this by:

Sending the complete text with your quotation or order confirmation, before or at the conclusion of the contract
Providing the terms electronically in a way that allows the counterparty to store and access them later; if the contract is not concluded electronically, this requires the counterparty’s express consent (Article 6:234(2) and (3))
Making the terms available for inspection or filing them with the Chamber of Commerce or a court registry, and offering to send them on request, but only if providing them is not reasonably possible (Article 6:234(1))

Suppose you reference your general terms and conditions first and the counterparty successfully annuls these conditions due to violation of the information obligation. That does not automatically mean the counterparty’s general terms and conditions become applicable. Under Article 6:225(3) of the Dutch Civil Code, the second reference had no effect. The starting point is then that neither set of general terms and conditions applies.

How Do You Prevent Problems with General Terms Under Dutch Law?

Prevent problems with general terms under Dutch law by referencing your conditions early in the quotation phase, always delivering them properly, monitoring incoming confirmations, expressly rejecting deviating conditions in body text, and confirming applicable terms in writing before execution begins.

Prevention works better than subsequent discussion. Follow these concrete steps to protect your position:

Reference your general terms and conditions as early as possible – already in the quotation phase or at first contact moment
Always deliver the conditions – send the full text with your quotation, or provide them electronically in a form that can be stored (with the counterparty’s express consent if the contract is not concluded electronically)
Check incoming order confirmations for references to other conditions
Reject deviating conditions directly and explicitly in the body text of your response
Confirm in writing which conditions apply before you begin execution

When Is a Choice of Law Advisable Under Dutch Law for International Contracts?

A choice of law under Article 3 of the Rome I Regulation creates clarity for international contracts. Choosing Dutch law means the first shot rule of Article 6:225(3) Dutch Civil Code applies regardless of your counterparty’s nationality, unless the contract is an international sale of goods governed by the CISG and the CISG has not been excluded.

For cross-border contracts, an explicit choice of law creates clarity. Article 3 of the Rome I Regulation grants parties the freedom to choose the applicable law. You include this choice in the contract or in your general terms and conditions. A choice of Dutch law means the first shot rule of Article 6:225(3) of the Dutch Civil Code applies, regardless of your contract partner’s nationality. For an international sale of goods, this is only the case if the CISG has also been excluded (see below).

Many businesses combine a choice of Dutch law with a forum clause. Two options are common:

The Netherlands Commercial Court (NCC): English-language proceedings before specialised chambers of the Amsterdam District Court and Court of Appeal. Its judgments are court judgments; within the EU they are enforced under the EU rules on judgments.
Arbitration, for example before the Netherlands Arbitration Institute. Arbitral awards can be enforced in the many states that are party to the New York Convention.

However, a choice of law makes no difference for the applicability of the Vienna Sales Convention. The convention applies automatically to international sales between parties from contracting states (Article 1 CISG). A choice of Dutch law alone generally does not exclude it, because the CISG is part of Dutch law. If you want to exclude the CISG, include an explicit exclusion clause in your agreement or general terms and conditions (Article 6 CISG).

Contact our law firm in Amsterdam for personal legal advice about your specific situation. We analyze your contracts, review your general terms and conditions, and advise on the optimal strategy for international commercial relationships. With 20 years of experience in commercial contract law, we protect business owners daily against the risks of unclear general terms and conditions.

Frequently asked questions about the battle of forms under Dutch law

Which general terms and conditions apply in a battle of forms under Dutch law?

Under Article 6:225(3) Dutch Civil Code, the terms referred to first apply. The second reference has no effect, unless it expressly rejects the first set of terms. The rule also applies when the first reference was made in a request for a quotation (Supreme Court, ECLI:NL:HR:2001:ZC3632).

How do I expressly reject my counterparty’s general terms and conditions?

The law requires an express rejection but prescribes no wording. In practice, name the counterparty, refer to the specific terms you reject and declare your own terms applicable in the body of your reply. A standard clause that only your own terms apply is generally not enough (Court of Appeal ‘s-Hertogenbosch, ECLI:NL:GHSHE:2014:748).

What happens if both parties reject each other’s terms?

Then Article 6:225(3) does not decide the matter. Each reply that deviates from the previous offer is a new offer (Article 6:225(1) Dutch Civil Code). The terms of the offer that was accepted last, for example by performance, apply.

Can my general terms apply if I never sent them to the other party?

The terms can form part of the contract, but the counterparty can in principle annul the clauses because it had no reasonable opportunity to read them (Articles 6:233(b) and 6:234). This defence is not available to companies that publish annual accounts, parties with 50 or more employees (Article 6:235(1)) or, in business contracts, parties that are not both established in the Netherlands (Article 6:247(2)).

Does the first shot rule apply to international sales contracts?

Only if Dutch law governs the contract and the CISG does not apply. Under the CISG, Article 19 suggests a last shot rule, while the CISG Advisory Council (Opinion No. 13, Rule 10) favours the knock-out rule. Agree on the applicable law, and on any exclusion of the CISG (Article 6 CISG), in the contract itself.