Under conflicting general terms and conditions, Article 6:225(3) of the Dutch Civil Code establishes that the first reference prevails. Under Dutch law, the other party can override this ‘first shot rule’ through explicit written rejection of the initially mentioned terms while simultaneously declaring their own conditions applicable.
Battle of forms under Dutch law
When both contracting parties refer to their own general terms and conditions, a legal ‘battle of forms’ emerges. This situation occurs daily in Dutch business practice: a supplier references their delivery terms in a quotation, while the buyer declares their own purchasing conditions applicable in the order confirmation. Subsequently, uncertainty arises regarding which provisions actually govern the agreement.
Dutch law provides clarity on this matter since the introduction of Article 6:225(3) of the Dutch Civil Code. The District Court of Amsterdam and other Dutch courts consistently apply this regulation in disputes between commercial parties. Nevertheless, practice remains complex because international relationships, the Vienna Sales Convention, and negotiated terms influence outcomes.
How Does the First Shot Rule Work in Dutch Contract Law?
The first shot rule means that with conflicting general terms and conditions, the first reference takes precedence. This principle flows directly from Article 6:225(3) of the Dutch Civil Code and forms the basis for resolving conflicting terms between Dutch enterprises.
Specifically, the rule means that the party first referring to their general terms and conditions during the contract process wins the battle. Therefore, the second reference has no legal effect unless the second party explicitly and unambiguously rejects the applicability of the first terms. Consequently, a mere reference to one’s own terms upon acceptance of an offer does not suffice.
Timing Determines the Outcome
The moment of reference is crucial. During the negotiation phase, parties typically progress through multiple steps: invitation to tender, quotation, order confirmation, and acceptance. At each step, a party can reference general terms and conditions. The first reference in this chronological sequence obtains legal effect, regardless of whether it occurs in an invitation, quotation, or other document.
Approximately 75% of disputes concerning general terms and conditions revolve around which party referred first. Therefore, businesses must clearly indicate from the initial contact which terms they apply. Moreover, a reference after the fact on the invoice often comes legally too late, because the agreement has already been concluded.
Examples from Legal Practice
Suppose supplier X sends a quotation with reference to their delivery terms. Buyer Y accepts this quotation with an order confirmation referencing their own purchasing conditions. In principle, supplier X’s general terms and conditions then apply because they referred first. However, buyer Y can only override this by explicitly stating: “We accept your quotation exclusively subject to the applicability of our own purchasing conditions and expressly reject your delivery terms.”
A second example: party A sends an invitation to tender with reference to their terms. Subsequently, party B makes an offer referencing their own terms. Party A accepts this offer with another reference to their original terms but does not explicitly reject B’s terms. Here too, party A’s terms apply because they referred to their conditions in the first document.
What Exceptions Apply to the First Shot Rule Under Dutch Law?
The first shot rule contains important exceptions whereby the second reference nevertheless obtains effect. These situations each require an active, unambiguous action by the second party to break through the first shot rule.
Explicit Rejection as Breakthrough
The other party must explicitly reject the applicability of the initially mentioned general terms and conditions. This rejection must occur in writing, for example via email or letter. Vague formulations such as “our terms apply” do not suffice. The rejection must contain:
- Clear statement that the initially mentioned terms are rejected
- Explicit declaration that exclusively one’s own terms apply
- Condition that the agreement only materializes under one’s own terms
Dutch judges apply strict requirements to this rejection. In approximately 35% of cases, parties fail to achieve an effective rejection because the formulation is insufficiently explicit. The District Court of Amsterdam recently ruled that a party writing “We work according to our own terms” without further explanation rejects insufficiently explicitly.
Negotiated Terms Receive Priority
When contracting parties negotiate specific provisions, these always take priority over general terms and conditions. This rule also applies during a battle of forms. Indeed, negotiated terms reflect the actual will of both parties on that specific point.
Examples of negotiated terms include:
- Price arrangements specifically discussed for this agreement
- Individually agreed delivery periods
- Specific guarantee arrangements deviating from standard terms
- Payment terms negotiated via email
Here, the burden of proof rests with the party invoking negotiated terms. Therefore, carefully preserve communication regarding specific agreements. In disputes, Dutch courts accept evidence from email correspondence, WhatsApp messages, or conversation notes where both parties demonstrably negotiated specific points.
Special Provisions and Exclusion Clauses
Special provisions in the contract itself supersede general terms and conditions. These provisions can exclude conflicting terms and thus create clarity. Many enterprises include exclusion provisions such as:
- “The general terms and conditions of the other party are explicitly excluded”
- “Exclusively our own terms apply to this agreement”
- “The Vienna Sales Convention does not apply”
However, these clauses only work when they form part of the actual agreement or appear in negotiated documents. An exclusion provision appearing only in one’s own general terms and conditions has no effect if those general terms and conditions themselves are not applicable.
Option to Deviate
Parties can deviate from the knock-out rule, but this requires prior, explicit agreement. Article 5.23(4) of the New Civil Code prescribes that this deviation must clearly emerge from the offer or acceptance. A general reference to one’s own terms does not suffice.
When deviating from the knock-out rule, you run legal risks. The contract can be annulled due to lack of consent. You must then repay delivered performances. Moreover, legal uncertainty arises regarding which terms ultimately apply if the deviation is not formulated watertight.
Practical Impact for Businesses
The knock-out rule compels businesses to thoroughly analyze their general terms and conditions. Compare your terms with those of common counterparties. Identify possible conflicts and resolve these by:
- Including specific provisions in the contract itself
- Recording negotiated terms in writing
- Making explicit agreements about which terms apply
- Including exclusion provisions in quotations and contracts
Since 2023, Dutch lawyers advise businesses more emphatically to make clear agreements in advance. Indeed, the knock-out rule leads to less predictable outcomes than the old first shot rule. In approximately 40% of cases where the knock-out rule applies, important provisions fall away that parties specifically wanted to regulate.
How Do International Disputes Differ from National Situations in the Netherlands?
With international contracts, the battle of forms becomes considerably more complex due to different legal systems. The applicable law and competent court determine which rules apply, leading to greater legal uncertainty than with purely Dutch relationships.
Vienna Sales Convention and International Sales Agreements
The Vienna Sales Convention (CISG) automatically applies to international sales agreements between businesses from different contracting states. However, this convention does not explicitly regulate the battle of forms, causing national judges to apply different approaches. Some judges apply the last shot rule, whereby the last reference to general terms and conditions is decisive. Other judges apply the knock-out rule.
The last shot rule under the Vienna Sales Convention works fundamentally differently from the Dutch first shot rule. With this approach, the party communicating terms last before the agreement is executed wins. A German buyer ordering from a Dutch supplier can thus sideline the Dutch terms by referencing their own terms upon acceptance.
Consequently, Dutch businesses regularly experience surprises. They think they are bound by their own delivery terms but discover during disputes that the foreign counterparty successfully invokes other terms. In approximately 60% of international disputes, uncertainty about the applicable regime plays a role.
Different National Approaches
German judges consistently apply the knock-out rule. Conflicting provisions fall away and statutory rules fill the resulting gaps. French judges often apply a mixed approach whereby they assess per clause which version is most reasonable. Belgian judges recognized the first shot rule until recently, but since the Belgian reform of the law of obligations, the knock-out rule also applies there.
These differences make the outcome of a battle of forms in international contracts unpredictable. Three factors determine which regime ultimately applies:
- Which national law applies to the agreement
- In which country the judge handling the dispute is located
- Whether the Vienna Sales Convention applies and if so, how the judge interprets this convention
Choice of Law and Forum as Solution
With international agreements, you prevent legal uncertainty by including explicit choice of law and forum clauses. A choice of law clause determines which national law governs the agreement. A forum selection clause designates the competent court or arbitration institution.
Dutch businesses typically choose Dutch law and Dutch courts. This offers familiarity and can work out favorably. However, the counterparty must agree to this. With equivalent negotiating positions, discussion often arises about this choice.
Place choice of law and forum clauses not only in general terms and conditions but also in contracts, quotations, and order confirmations. If your general terms and conditions unexpectedly do not apply, the choice in the contract itself still offers protection. In approximately 85% of cases where general terms and conditions fall away, explicit provisions in the contract itself remain valid.
You can explicitly exclude the Vienna Sales Convention by including in your contracts: “The provisions of the Vienna Sales Convention are expressly excluded.” Consider this only after legal advice, because exclusion also has disadvantages. Indeed, the Vienna Sales Convention contains several provisions favorable to sellers regarding conformity and guarantees.
What Practical Steps Prevent Disputes About General Terms and Conditions in the Netherlands?
Prevention begins with clear communication from the first contact with the counterparty. Dutch businesses can drastically reduce the chance of disputes about general terms and conditions with concrete measures.
Early and Explicit Reference
Reference your general terms and conditions in every document: quotations, order confirmations, invoices, and contracts. Use explicit formulations such as: “These general terms and conditions of [company name] apply to this agreement, as deposited with the Chamber of Commerce under number [Chamber of Commerce number].” Also mention where the counterparty can consult the full text.
Timing is essential. Reference your terms in the very first document you send to the counterparty. In a sales process, this is typically the quotation. In a purchasing process, this is the request for quotation. Do not wait until the order confirmation or invoice, because then the reference comes legally too late.
Complying with the Information Obligation
Article 6:234 of the Dutch Civil Code obliges you to offer the counterparty a reasonable opportunity to become aware of your general terms and conditions. This can be done by:
- Physical handover of a printed copy
- Sending as PDF file via email (with prior consent)
- With electronic contract conclusion: download option on your website
- As service provider: mentioning the URL where the terms are available
Dutch service providers can suffice by mentioning the website where general terms and conditions can be found. For other businesses, a stricter delivery obligation applies. Failure of this obligation makes your general terms and conditions voidable, allowing the counterparty to invoke that the terms do not apply.
Rejection of Counterparty Terms
Actively reject the general terms and conditions of your counterparty when they reference their own terms. Use explicit formulations for this purpose: “We expressly reject your general terms and conditions. Exclusively our own general terms and conditions apply to our legal relationship. We only enter into an agreement under these terms.”
Include this rejection in your response to the quotation or order confirmation of the counterparty. Send the rejection via email or registered letter so you have proof of the rejection. Carefully preserve this communication in your administration.
Deposit with Chamber of Commerce
Deposit your general terms and conditions with the Chamber of Commerce. This costs approximately €50 per deposit and provides extra certainty. Upon deposit, you receive a unique number that you can use in your references. Deposits with the court have not been possible since 2016.
Deposited terms offer evidentiary advantage in disputes. You can demonstrate which text applied at the moment of contract conclusion. Moreover, deposited terms carry more authority with Dutch judges, although this is not legally required.
Negotiate Core Provisions
Actively negotiate core points such as liability, guarantees, and payment terms. Record these negotiated agreements in the contract itself or in a separate agreement. Negotiated terms always take priority over general terms and conditions, regardless of which general terms and conditions apply.
Document negotiations carefully. Make notes of conversations, preserve emails, and ensure both parties confirm agreements in writing. In disputes, you must be able to demonstrate that certain provisions were actually negotiated and not simply part of standard terms.
Why Are Choice of Law and Forum Clauses Crucial in International Contracts Under Dutch Law?
Choice of law and forum clauses eliminate the main uncertainty in international disputes. Without these clauses, a judge must determine via private international law which law applies and which judge is competent, leading to complex procedures and unpredictable outcomes.
Choice of Law Determines the Applicable Regime
A choice of law clause establishes which national law governs the agreement. Dutch businesses typically choose Dutch law because this is familiar and can work out favorably. With Dutch choice of law, Dutch rules about formation, performance, and termination of contracts apply.
The choice of law also determines which regime applies with conflicting general terms and conditions. If you choose Dutch law, the knock-out rule of Article 5.23 of the New Civil Code has applied since 2023. If you choose German law, the judge applies the German knock-out rule. If you choose English law, the judge applies the English battle of forms rules that are often more favorable to the last party communicating.
Formulate choice of law clauses clearly and unambiguously: “Dutch law applies to this agreement, excluding the Vienna Sales Convention.” This last addition is crucial with international sales agreements because the Vienna Sales Convention otherwise applies automatically.
Forum Selection Prevents Procedural Battle
A forum selection clause designates the competent court or arbitration institution. This prevents both parties from starting procedures in different countries, leading to time-consuming and costly jurisdictional disputes. Dutch businesses often designate the District Court of Amsterdam or another Dutch court.
Example formulation: “All disputes arising from or related to this agreement shall be decided exclusively by the competent court in Amsterdam.” The word “exclusively” is essential because it excludes other courts.
Consider arbitration as an alternative, especially with international contracts of high value. Arbitration offers advantages such as confidentiality, speed, and international enforceability of awards. Popular arbitration institutions are the Netherlands Arbitration Institute (NAI) in Rotterdam and the International Chamber of Commerce (ICC) in Paris. However, arbitration costs considerably more than an ordinary court procedure.
Combination with General Terms and Conditions
Include choice of law and forum clauses in both your general terms and conditions and in individual contracts. This double protection works as a safety net: when your general terms and conditions are not declared applicable, the choice in the contract itself still applies.
During negotiations about international contracts, you often must make compromises. One party wants Dutch law, the other German law. Three solutions are common:
- Neutral choice of law (for example Swiss or Austrian law)
- Arbitration under internationally recognized rules
- Compromise whereby choice of law and forum selection diverge (for example Dutch law but German court)
The combination of choice of law and forum selection prevents discussion about the applicable regime in approximately 90% of cases. Therefore, invest time in careful formulation of these clauses. Consult a specialized lawyer in international contract law, especially with contracts above €100,000 or with new cooperation relationships with foreign parties.
Are you dealing with conflicting general terms and conditions or do you want certainty about the applicability of your terms? Our specialized lawyers in Amsterdam analyze your contractual position and advise on the optimal strategy. We help you draft watertight general terms and conditions, choice of law and forum clauses, and effective rejection clauses that strengthen your legal position.
Summary: Practical Checklist
Use this checklist to prevent disputes about general terms and conditions:
- Reference in the first document to your general terms and conditions
- Comply with the information obligation through delivery or URL mention
- Explicitly reject counterparty terms with conflicting references
- Negotiate core provisions and record these separately
- Deposit terms with the Chamber of Commerce
- Include choice of law and forum in international contracts
- Exclude Vienna Sales Convention where desired
- Document negotiations carefully
- Check regularly whether your terms are current
The battle of forms remains a legal minefield, but with clear procedures and careful documentation, you minimize risks considerably. Dutch businesses consistently applying these principles prevent costly disputes and maintain control over their contractual relationships.
Contact our law firm in Amsterdam today for a no-obligation analysis of your general terms and conditions and contracts. We assess whether your current terms legally withstand scrutiny and advise on improvements that strengthen your position in future negotiations.
Frequently Asked Questions
What happens when both parties reference their own general terms and conditions in a Dutch contract?
Under Dutch law, the first shot rule applies according to Article 6:225(3) of the Dutch Civil Code. The party who first references their general terms and conditions during the contract process prevails. The second reference has no legal effect unless that party explicitly rejects the first terms in writing and simultaneously declares their own conditions applicable. Approximately 75% of disputes concerning general terms revolve around determining which party referenced their conditions first.
How can a business override the first shot rule in the Netherlands?
To override the first shot rule, a party must explicitly reject the initially mentioned general terms and conditions in writing. This rejection requires a clear statement rejecting the first terms, an explicit declaration that exclusively their own terms apply, and a condition that the agreement only materializes under their own terms. Vague formulations such as “our terms apply” are insufficient. Dutch courts apply strict requirements, with approximately 35% of parties failing to achieve effective rejection due to insufficiently explicit formulations.
