English general terms and conditions are lawful under Dutch law: no statute requires Dutch. What counts is whether your counterparty could understand your reference and had a reasonable opportunity to read the terms. Trading with Dutch companies or consumers? Have your English terms reviewed or drafted before a dispute arises over whether they apply.
Can you use English general terms and conditions under Dutch law?
Dutch law allows English general terms and conditions. The statutory rules on standard terms in Articles 6:231 to 6:247 of the Dutch Civil Code (BW) contain no language requirement. What matters is the opportunity to read the terms and, for consumers, whether they are clear.
The real question is whether you can prove that your terms became part of the contract. That starts with offer and acceptance (Article 6:217 BW). Did your offer clearly refer to your terms? And could you reasonably treat your counterparty’s response as agreement to them (Article 3:35 BW)? A reference in a language the other party does not read makes this harder to prove.
Not knowing the content is not a way out in itself. Under Article 6:232 BW, a counterparty is bound even if the user knew or should have known that it was unaware of the content. Language does matter for two other questions: was the reference understood, and did the other party have a reasonable opportunity to read the text? The full statutory text is available in Book 6 of the Dutch Civil Code on wetten.overheid.nl (in Dutch).
Do the Dutch standard terms rules apply to a foreign company?
Between businesses that are not both established in the Netherlands, Articles 6:231 to 6:247 BW do not apply. That remains so when Dutch law governs the contract (Article 6:247(2) BW). The rules on offer and acceptance then decide whether your terms apply.
The duty to provide the terms under Article 6:234 BW then falls away. The Dutch counterparty cannot rely on the grounds for annulment in Article 6:233 BW either. The question remains whether it could reasonably understand your reference as a proposal to apply your terms (Article 3:35 BW). The language of that reference counts. The limiting effect of reasonableness and fairness also continues to apply (Article 6:248(2) BW).
The position changes if a Dutch branch performs the contract. The test looks at the principal place of business, or at the branch that must carry out the performance under the contract (Article 6:247(3) BW). If both parties are then established in the Netherlands, the standard terms rules apply whatever law governs the contract (paragraph 1).
If you choose Dutch law, a court will in principle assess whether the contract and a term exist under that law (Article 10(1) of Regulation (EC) No 593/2008, Rome I). Your counterparty may, however, rely on the law of its habitual residence to show that it did not consent. That route is open if it would not be reasonable to judge its conduct under the chosen law (Article 10(2)). For cross-border sales of goods, there is also the question of a dispute over the CISG and general terms and conditions.
When did your counterparty have a reasonable opportunity to read the terms?
Where the Dutch rules apply, your counterparty had that opportunity if you handed over the terms before or at the conclusion of the contract (Article 6:234(1) BW). For an electronic contract, digital delivery in a form it can store and consult later is enough.
Article 6:234 BW sets out these routes:
- You hand over the text on paper or as an attachment, before or when the contract is concluded (paragraph 1).
- You make the text available electronically, so that your counterparty can store it and consult it later (paragraph 2).
- If the contract is not concluded electronically, you need your counterparty’s express consent for that digital route (paragraph 3).
- Only if handing over the terms is not reasonably possible may you announce in advance that they are available for inspection or filed with the Dutch Chamber of Commerce or a court registry. You then send them on request (paragraph 1).
Article 6:234 BW says nothing about language. If the other party does not read English, whether an English text gave it a reasonable opportunity depends on the circumstances. Think of the language of the negotiations, the language of the quotation and order confirmation, and the language your counterparty uses in its own correspondence.
Not every counterparty can invoke this ground for annulment. Article 6:235(1) BW excludes larger businesses: legal entities that publish their annual accounts and parties employing fifty or more people. A party that itself repeatedly uses the same or nearly the same terms also lacks this protection (paragraph 3). For the general rules, see when general terms and conditions apply under Dutch law and how a battle of forms works under Dutch law.
What applies to English terms used with Dutch consumers?
With consumers, terms must be clear and understandable. Where the meaning of a term is in doubt, the interpretation most favourable to the consumer prevails (Article 6:238(2) BW). An English text a Dutch consumer cannot follow works against you.
This rule derives from Article 5 of Council Directive 93/13/EEC on unfair terms in consumer contracts. If the consumer has their habitual residence in the Netherlands, the Dutch standard terms rules always apply, whatever law governs the contract (Article 6:247(4) BW).
If you sell through a webshop, state before the order in which languages the contract can be concluded (Article 6:227b(1)(d) BW). A contract concluded under the influence of missing information on this point is voidable (paragraph 4). Businesses may agree to deviate from this information duty among themselves (paragraph 6).
If you direct your activities at consumers in the Netherlands, you may choose the law of your own country. That choice does not deprive the consumer of the protection of the mandatory rules of their country of residence (Article 6(2) Rome I). Terms in a language the consumer reads therefore reduce the risk of a dispute.
Unsure whether your English terms will hold up against Dutch customers? MAAK Advocaten advises international businesses that want their general terms and conditions reviewed by a Dutch lawyer, including how you deliver the terms to the other party.
Which language version prevails if your terms exist in two languages?
Dutch statute does not say which language version prevails. You set this yourself in a precedence clause, for example that the English text decides in case of differences. Such a clause is itself one of your general terms within the meaning of Article 6:231(a) BW.
With consumers, a precedence clause offers less certainty. If a term is unclear in one of the versions, the interpretation most favourable to the consumer prevails where there is doubt (Article 6:238(2) BW). Do not count on a precedence clause to cure a careless translation.
Between businesses, a precedence clause works best if the governing version is in a language your counterparty reads. If a Dutch buyer only received the Dutch version, a clause stating that the English text prevails will do little for you.
Watch out for concepts that Dutch law fills in differently. Article 3:92 BW governs retention of title, known in Dutch as “eigendomsvoorbehoud”. Terms such as “consequential loss” or “best endeavours” carry a specific meaning in English law. Use them only if you define them in your terms. Background is available in our comparison of the differences between English and Dutch contract law.
How does the language of your terms relate to the choice of law?
The language of your terms does not determine the governing law. Parties choose it, expressly or clearly demonstrated by the terms of the contract or the circumstances (Article 3(1) Rome I). English-language terms do not automatically turn your contract into one governed by English law.
Without a choice, Rome I determines the governing law. Include an express choice, for example: “These general terms and conditions and all agreements to which they apply are governed by Dutch law.” The chosen law also governs the interpretation of the contract (Article 12(1)(a) Rome I). A court then reads English legal terms in the light of Dutch law, which is another reason to avoid or define them.
Combine the choice of law with a jurisdiction clause, so that it is also clear which court hears disputes. With consumers, further limits apply, such as Article 6:236(n) BW. More on this in our articles on choice of law in contracts under Dutch law and on Dutch jurisdiction in international disputes.
How do you make sure your English terms apply to a Dutch counterparty?
Refer to your terms before you conclude the contract, in the language of the negotiations, and hand over the text or make it available digitally. That meets Article 6:234 BW where it applies, and your counterparty can understand the reference.
- Include a reference in the language of the negotiations in your quotation and order confirmation, for example: “Our general terms and conditions apply to this offer and are attached.”
- Attach the full text, or send a link to a version your counterparty can download and store.
- Use the same version on your website, quotations and invoices, with a date or version number.
- Record when and how you sent the terms, so you can prove it later.
- If you have several language versions, at least provide the version in your counterparty’s language and add a precedence clause.
What goes wrong with a reference your Dutch counterparty cannot read?
A reference your counterparty cannot read may mean your terms do not apply. Between businesses not both established in the Netherlands, a court applying Dutch law uses the general rules on offer and acceptance (Article 6:217 BW) rather than Article 6:234 BW.
Suppose a Swedish software supplier signs a framework agreement with a Dutch distributor that chooses Dutch law. The negotiations take place in English. The order confirmations, however, refer to the supplier’s terms only in Swedish, without an attachment. After a delivery, a dispute arises about the limitation of liability in those terms.
The supplier is not established in the Netherlands, so Articles 6:233 and 6:234 BW do not apply (Article 6:247(2) BW). The dispute turns on one question: should the distributor have understood the Swedish line as a proposal to apply the terms? An English reference with the text attached would have avoided that discussion.
When should you have English terms reviewed by a Dutch lawyer?
Have your English general terms reviewed before you first use them with Dutch customers or suppliers. The same applies if you add a translation next to an existing version, or if a counterparty disputes that the terms apply. Check the choice of law and jurisdiction clause too.
Timing matters too where the Dutch standard terms rules apply. The limitation period for annulling a term only starts on the day after the user has invoked that term (Article 6:235(4) BW). A counterparty can therefore still raise the language issue years later.
Already using English terms with Dutch parties, or preparing to enter the Dutch market? MAAK Advocaten advises international businesses on the content, language versions and delivery of their terms under Dutch law. Contact us to discuss your situation, or start with our overview of general terms and conditions in the Netherlands.
Frequently asked questions about English general terms and conditions under Dutch law
Do general terms and conditions have to be in Dutch?
A Dutch version is not required: Articles 6:231 to 6:247 BW contain no language requirement. Your counterparty must have a reasonable opportunity to read the terms, and with consumers the terms must be clear and understandable (Article 6:238(2) BW).
Does Article 6:234 BW apply if my company is based outside the Netherlands?
In dealings with a Dutch business, as a rule it does not. If the parties are not both established in the Netherlands, the standard terms rules of the BW do not apply, even if Dutch law governs the contract (Article 6:247(2) BW). With consumers resident in the Netherlands, they always apply (paragraph 4).
Is a counterparty bound by English terms it has not read?
As a rule, the counterparty is bound. Under Article 6:232 BW this is so even if the user knew or should have known that the other party was unaware of the content. The question remains whether you validly incorporated the terms and, where Article 6:233 BW applies, whether there was a reasonable opportunity to read them.
Which text applies if the Dutch and English versions differ?
A precedence clause in your terms decides this; Dutch statute does not. With consumers, the interpretation most favourable to them prevails where the meaning of a term is in doubt (Article 6:238(2) BW). Do not rely on a precedence clause to correct an unclear translation in your favour.
Do English terms mean English law applies?
English terms do not by themselves lead to English law. The governing law follows from the parties’ choice (Article 3(1) Rome I) and, without a choice, from the other rules of the Rome I Regulation. Include an express choice of Dutch law if that is the law you want to apply.
