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Dutch law has two lists of unfair terms in general terms and conditions (algemene voorwaarden). A black-list term is always deemed unreasonably onerous (Article 6:236 Dutch Civil Code); a grey-list term is presumed to be (Article 6:237). Both lists protect consumers only. Others can rely on the open test of Article 6:233(a), unless Article 6:235 or 6:247 excludes them.
An unreasonably onerous term is not “forbidden” in a criminal sense: it is voidable (vernietigbaar), so the other party can annul it. Below we explain what the lists contain, who can rely on them, what applies to business and foreign counterparties, and how far you can exclude liability. For the wider context, see our page on contract law in the Netherlands.
Key Takeaways
- Article 6:236 Dutch Civil Code (black list) names terms that are always deemed unreasonably onerous in consumer contracts; Article 6:237 (grey list) names terms that are presumed to be. Such terms are voidable.
- Examples: a term that excludes the consumer’s right to dissolve the contract (Article 6:236(b)), a price increase within three months without a right to dissolve (Article 6:236(i)) and a term excluding the statutory liability for damages (Article 6:237(f)).
- An exclusion or limitation of liability is valid in principle. Relying on it can be unacceptable under reasonableness and fairness (Article 6:248(2)), which is in general the case if the damage is due to intent or deliberate recklessness of the debtor or its management.
- The lists protect consumers only. Businesses can rely on the open test of Article 6:233(a), unless Article 6:235 excludes them. Between businesses that are not both established in the Netherlands, these rules do not apply at all (Article 6:247(2)).
How does Dutch contract law work?
The rules on general terms and conditions are in the Dutch Civil Code (Burgerlijk Wetboek), Book 6, Articles 6:231 to 6:247. They apply in both business-to-consumer and, with exceptions, business-to-business contracts. Book 7 adds mandatory rules for specific contracts, such as consumer sale.
The Dutch Civil Code provides the framework for contract formation: a contract is formed by an offer and its acceptance (Article 6:217(1) Dutch Civil Code). Unlike common law, Dutch law does not require “consideration”.
In a business-to-consumer context, additional mandatory rules apply. In a consumer sale, for example, the seller cannot deviate from Sections 1 to 7 of the title on sale to the detriment of the consumer (with the exceptions of Article 7:6(2)), nor limit or exclude the consumer’s rights in case of non-performance (Article 7:6(1) Dutch Civil Code).
Contract interpretation is another vital aspect of Netherlands contract law.
Dutch courts interpret a contract by asking what meaning the parties could reasonably attribute to its terms in the circumstances, and what they could reasonably expect of each other (Supreme Court 13 March 1981, ECLI:NL:HR:1981:AG4158, Haviltex). A contract also has the legal effects that follow from the requirements of reasonableness and fairness (redelijkheid en billijkheid, Article 6:248(1)).
Where ambiguity arises, Dutch courts interpret the contract taking into account the parties’ interests and its purpose. In consumer contracts, general terms must be clear and comprehensible, and in case of doubt the interpretation most favourable to the consumer prevails (Article 6:238(2)).
Additionally, the Unfair Contract Terms Directive (Directive 93/13/EEC, also called the Unfair Terms in Consumer Contracts Directive) influences contract interpretation, safeguarding consumers from unfair terms.
Building this directive into Dutch contract law highlights the emphasis on fairness and transparency in contractual relationships.
Which terms are forbidden in consumer contracts?
Building on the foundations of Netherlands contract law, the inclusion of specific statutory provisions further protects consumers by restricting the use of certain terms and conditions in consumer contracts that are deemed unfair or onerous.
The Dutch Civil Code has two lists for contracts with a consumer (a natural person not acting in the course of a profession or business). The black list (Article 6:236) names terms that are always deemed unreasonably onerous. The grey list (Article 6:237) names terms that are presumed to be unreasonably onerous; the user can rebut that presumption. A term on either list is voidable, just like any other unreasonably onerous term (Article 6:233(a)).
Examples from the black list: excluding or limiting the consumer’s right to dissolve the contract (Article 6:236(b)), shortening a statutory limitation period to less than one year (Article 6:236(g)), and a dispute resolution clause that does not give the consumer at least one month to opt for the competent court (Article 6:236(n)). Examples from the grey list: excluding liability for damages (Article 6:237(f)), and a term that allows the user to deliver something substantially different without a right to dissolve (Article 6:237(c)). In a consumer sale, the rights of the buyer for non-conformity cannot be limited at all (Article 7:6(1)).
The Netherlands Authority for Consumers and Markets (ACM) supervises compliance. A trader who uses general terms may not bind a consumer to a term that is voidable under these rules (Article 8.3 Consumer Protection Enforcement Act, Wet handhaving consumentenbescherming). The ACM acts against infringements that harm or may harm the collective interests of consumers (Articles 1.1 and 2.2 of that Act).
Consumers who encounter unfair contract terms can report them to the ACM. The ACM can impose an order subject to a penalty or an administrative fine of up to €900,000 or, if higher, 1% of turnover (Articles 2.9 and 2.15(1) of that Act); higher maxima apply in a coordinated EU enforcement action (up to 4% of annual turnover, Article 2.15(3)) and for a repeat offence within five years (an increase of 100%, Article 2.15(4)). An individual consumer annuls a term by an out-of-court statement to the user or through a court judgment (Article 3:49 Dutch Civil Code). Consumer and trade associations can ask the court to declare terms unreasonably onerous in a collective action (Article 6:240).
This regulatory framework highlights the Netherlands’ commitment to protecting consumers from abusive contract terms and ensuring that contractual agreements are negotiated fairly and in good faith.
How far can you exclude liability?
Under Dutch law, parties are in principle free to exclude or limit liability. The limits are: the grey list for consumer contracts (Article 6:237(f)), mandatory law such as the rule for consumer sale (Article 7:6(1)), the open test for unreasonably onerous terms (Article 6:233(a)) and the rule that a term does not apply where that would be unacceptable according to standards of reasonableness and fairness (Article 6:248(2)).
The Dutch Civil Code does not itself prohibit exclusions for intent or gross negligence. According to the Supreme Court, however, relying on an exclusion clause will in general be unacceptable under reasonableness and fairness if the damage is due to intent or deliberate recklessness (opzet of bewuste roekeloosheid) of the debtor or of the persons in charge of its business (Supreme Court 12 December 1997, ECLI:NL:HR:1997:ZC2524). The Unfair Contract Terms Directive includes terms excluding or limiting the liability of the seller or supplier for the death of or personal injury to the consumer in its indicative and non-exhaustive list of terms that may be regarded as unfair (Article 3(3) and Annex, point 1(a), of Directive 93/13/EEC); a term that is unfair is not binding on the consumer (Article 6(1)).
| Liability Exclusion/Limitation | Dutch law | Unfair Contract Terms Directive |
|---|---|---|
| Intent | Reliance generally unacceptable (Article 6:248(2) DCC; Supreme Court 1997) | Not binding on the consumer if unfair (Articles 3(1) and 6(1) Directive 93/13/EEC) |
| Deliberate recklessness (gross negligence) | Reliance generally unacceptable (Article 6:248(2) DCC; Supreme Court 1997) | Not binding on the consumer if unfair (Articles 3(1) and 6(1) Directive 93/13/EEC) |
| Damage caps | Valid in principle; in consumer contracts presumed unreasonably onerous (Article 6:237(f)); otherwise open test (Articles 6:233(a) and 6:248(2)) | Not binding on the consumer if unfair (Articles 3(1) and 6(1) Directive 93/13/EEC); the Annex lists terms inappropriately excluding or limiting the consumer’s rights on non-performance (point 1(b)) |
| Consequential damage | Valid in principle; same limits as damage caps | Not binding on the consumer if unfair (Articles 3(1) and 6(1) Directive 93/13/EEC); see Annex, point 1(b) |
A cap on liability or an exclusion of consequential damage is therefore not void as such. Whether you can rely on it depends on the circumstances of the case (Article 6:248(2)) and, in consumer contracts, on whether you can rebut the presumption of Article 6:237(f). In practice, the risk is highest in case of intent or deliberate recklessness, and in consumer contracts.
When is a contract term unfair?
Under the Dutch Civil Code, a term in general terms and conditions is voidable if it is unreasonably onerous for the other party, given the nature and content of the contract, the way the terms were agreed, the mutually apparent interests of the parties and the other circumstances (Article 6:233(a)). It is also voidable if the user did not give the other party a reasonable opportunity to read the terms (Article 6:233(b)). The Unfair Contract Terms Directive (93/13/EEC) describes unfair terms in consumer contracts as terms that cause a significant imbalance in the rights and obligations of the parties to the detriment of the consumer.
This legislation aims to protect consumers from contract terms that are unclear, ambiguous, or contain hidden obligations, which can create ambiguity risks and undermine their rights.
Examples of terms that may be unfair include those that exclude or limit the liability of the trader, impose disproportionate penalties, or make it difficult for consumers to exercise their rights. Whether such a term is unreasonably onerous depends on the circumstances (Article 6:233(a)); in consumer contracts, an exclusion or limitation of liability is presumed to be unreasonably onerous (Article 6:237(f)).
The Netherlands Authority for Consumers and Markets (ACM) supervises compliance in consumer contracts and can take action against traders that use unfair terms where this harms or may harm the collective interests of consumers (Articles 1.1, 2.2 and 8.3 Consumer Protection Enforcement Act); it does not enforce these rules between businesses.
In consumer contracts, terms must be drafted in a clear and comprehensible manner; in case of doubt, the interpretation most favourable to the consumer prevails (Article 6:238(2)).
Hidden obligations, such as charges or penalties, must be explicitly stated to avoid creating ambiguity risks.
Companies must verify that their contract terms comply with the rules and regulations to avoid enforcement action by the ACM.
Have your terms reviewed by a lawyer before you use them, in particular if you sell to consumers.
Who can rely on the black and grey lists?
Only a consumer: a natural person who does not act in the course of a profession or business (Articles 6:236 and 6:237). Other parties, including small businesses, can rely on the open test of Article 6:233(a) and on Article 6:233(b), with the following exceptions (Article 6:235):
- a legal entity referred to in Article 2:360 DCC that, at the time the contract was concluded, had most recently published its annual accounts, or for which Article 2:403(1) was most recently applied (Article 6:235(1)(a));
- a party that, at that time, had fifty or more persons working for it, or for which a filing under the Trade Register Act 2007 shows that fifty or more persons work for it (Article 6:235(1)(b));
- a party that itself repeatedly uses the same or nearly the same general terms and conditions in its contracts (Article 6:235(3)).
Even a party that cannot rely on these rules can still invoke the general rule that a contractual term does not apply where that would be unacceptable according to standards of reasonableness and fairness (Article 6:248(2)), provided Dutch law governs the contract.
Do the Dutch rules on general terms apply to foreign business partners?
That depends on where the parties are established, not on the law that governs the contract (Article 6:247):
- Between businesses that are both established in the Netherlands, Articles 6:231-6:247 apply, whatever law governs the contract (Article 6:247(1)).
- Between businesses that are not both established in the Netherlands, these articles do not apply, whatever law governs the contract (Article 6:247(2)). The relevant establishment is the principal place of business or, if another branch must perform under the contract, that branch (Article 6:247(3)).
- If the other party is a consumer with habitual residence in the Netherlands, the articles apply, whatever law governs the contract (Article 6:247(4)).
If Article 6:247(2) excludes the rules and Dutch law governs the contract, a foreign business can mainly rely on Article 6:248(2) (reasonableness and fairness) and on Article 3:40: a term contrary to public policy or good morals is void, and a term contrary to a mandatory provision is void or, if that provision only protects one of the parties, voidable, unless the purpose of the provision implies otherwise; a provision that is not intended to affect the validity of contracts has no such effect (Article 3:40(2)-(3)).
How do you make your terms compliant?
Compliance with regulations governing contract terms is essential to avoid enforcement action, and companies must make sure that their contractual agreements comply with the Dutch Civil Code; in consumer contracts the Netherlands Authority for Consumers and Markets (ACM) supervises compliance.
Start with the basics. The other party is bound by your terms even if you understood or should have understood that it did not know their content (Article 6:232). But you must give it a reasonable opportunity to read them. You do that by handing over the terms before or at the conclusion of the contract, by providing them in one of the ways set out in Article 6:230c (for service providers), or by making them available electronically before or at that time, in a way that allows the other party to store and consult them. If that is reasonably not possible, you may instead inform the other party before the contract is concluded that the terms are available for inspection at your office or have been filed with a Chamber of Commerce or court registry, or where they can be read electronically, and that they will be sent on request; if you then fail to send them promptly on request, the terms are also voidable (Article 6:234(1)-(2)). Electronic provision when the contract is not concluded electronically requires the other party’s express consent (Article 6:234(3)).
To certify compliance, companies should establish a thorough compliance framework that includes:
- Regular contract reviews: Conduct periodic reviews of your terms and conditions against Articles 6:233-6:237 of the Dutch Civil Code.
- Compliance checklists: develop and use compliance checklists to verify that all contractual agreements meet the required standards.
- Employee training: Provide regular training to employees involved in contract drafting and negotiation to certify they are aware of the regulatory requirements.
Frequently asked questions about forbidden terms in Dutch general terms and conditions
What is the difference between the black list and the grey list (Article 6:237)?
Both lists apply to contracts with consumers. A term on the black list (Article 6:236 Dutch Civil Code) is always deemed unreasonably onerous. A term on the grey list (Article 6:237) is presumed to be unreasonably onerous, but the user can show that, in the circumstances, it is not. In both cases the consumer can annul the term (Article 6:233(a)).
Can a business rely on the black and grey lists?
No, the lists protect consumers only. A business can rely on the open test of Article 6:233(a) and on the information duty of Articles 6:233(b) and 6:234, unless Article 6:235 excludes it, for example because it published its annual accounts, has fifty or more persons working for it, or itself repeatedly uses the same terms.
Do Dutch rules on general terms and conditions apply to a foreign business partner?
Not if the two businesses are not both established in the Netherlands: Articles 6:231-6:247 then do not apply, whatever law governs the contract (Article 6:247(2)). If Dutch law governs the contract, the foreign party can still rely on reasonableness and fairness (Article 6:248(2)) and on Article 3:40 Dutch Civil Code.
Can you exclude liability for intent or gross negligence under Dutch law?
The Dutch Civil Code does not prohibit it as such. According to the Supreme Court, relying on an exclusion clause will in general be unacceptable if the damage is due to intent or deliberate recklessness of the debtor or of the persons in charge of its business (Supreme Court 12 December 1997, ECLI:NL:HR:1997:ZC2524; Article 6:248(2)). In consumer contracts, an exclusion of liability is also presumed unreasonably onerous (Article 6:237(f)).
How does the Unfair Contract Terms Directive relate to Dutch law?
The Dutch Consumer Protection Enforcement Act links Directive 93/13/EEC to the rule that a trader may not bind a consumer to a term that is voidable under Articles 6:231-6:247 Dutch Civil Code (Article 8.3 and annex of that Act). In a dispute, the consumer annuls the term under the Civil Code; the ACM can act against traders where the collective interests of consumers are or may be harmed.
Primary sources
- Dutch Civil Code: Articles 3:40, 3:49, 6:217, 6:232, 6:233, 6:234, 6:235, 6:236, 6:237, 6:238, 6:240, 6:247, 6:248 and 7:6
- Consumer Protection Enforcement Act (Wet handhaving consumentenbescherming): Articles 1.1, 2.2, 2.9, 2.15 and 8.3
- Supreme Court 13 March 1981, ECLI:NL:HR:1981:AG4158 (Haviltex)
- Supreme Court 12 December 1997, ECLI:NL:HR:1997:ZC2524 (exclusion clause, deliberate recklessness)
- Directive 93/13/EEC on unfair terms in consumer contracts (referred to as it stood on the page)
Conclusion
Under Dutch contract law, unreasonably onerous terms in general terms and conditions are voidable, and consumers are protected by the black and grey lists. Exclusions and limitations of liability are valid in principle, but within limits. Check who your counterparty is (consumer, Dutch business or foreign business), because that determines which rules apply.
Following the stipulated guidelines enables the creation of valid and enforceable contracts, safeguarding the interests of all parties involved and promoting fair business practices. Regulatory conformity reduces the risks of contractual invalidity.
