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General terms and conditions in the Netherlands (algemene voorwaarden) are clauses written for use in more than one contract; they only bind your Dutch customer or supplier once they form part of the contract (Articles 6:217 and 6:231 Dutch Civil Code). For foreign companies trading with Dutch businesses: which rules apply, how to make your terms stick and when to have a Dutch lawyer review them.
What are general terms and conditions under Dutch law?
Under Dutch law, general terms and conditions are clauses drafted for use in a number of contracts. Clauses describing the core of the performance, such as price and product, fall outside that definition if they are clear and understandable.
The definition is in Article 6:231(a) Dutch Civil Code. The user is the company that uses the terms; the other party accepted them by signing or in another way (Article 6:231(b) and (c)). Where the Dutch rules apply, the terms bind the other party once accepted, even if the user understood, or should have understood, that it did not know their content (Article 6:232). That is why the way you offer your terms matters as much as what they say.
Which Dutch rules apply when you trade with a Dutch company from abroad?
Between businesses, the Dutch rules on general terms only apply if both parties are established in the Netherlands, whatever law governs the contract. For consumers living in the Netherlands, they always apply.
This territorial limit is set out in Article 6:247(1), (2) and (4) Dutch Civil Code. A party counts as established in the Netherlands if its principal place of business is there or, if another branch must perform the contract, if that branch is in the Netherlands (Article 6:247(3)).
| Your contract | Dutch rules on general terms (Art. 6:231-6:247) | What also applies |
|---|---|---|
| Business to business, your Dutch branch performs the contract and the customer is Dutch | Yes (Art. 6:247(1) and (3)) | Duty to provide the terms and annulment grounds (Art. 6:233 and 6:234) |
| Business to business, one party established outside the Netherlands | No, whatever law governs (Art. 6:247(2)) | For a sale of goods often the CISG; otherwise the contract law of the governing law |
| Sale to a consumer who lives in the Netherlands | Yes, whatever law governs (Art. 6:247(4)) | Black and grey lists (Art. 6:236 and 6:237) |
Cross-border sales of goods often fall under the UN Convention on Contracts for the International Sale of Goods (CISG, the Vienna Sales Convention): between parties in different Contracting States, or where private international law leads to the law of a Contracting State (Article 1(1) CISG). The Netherlands, Germany, Belgium, China and the United States are Contracting States, although China and the United States do not apply Article 1(1)(b) (Article 95 CISG); the United Kingdom is not, according to the UNCITRAL status list. The parties can exclude the CISG (Article 6 CISG); see our page on excluding the CISG in general terms and conditions.
How do your terms become part of a contract with a Dutch party?
Your terms become part of the contract if you refer to them in your offer before the contract is concluded and the other party accepts it; under the CISG, the other party must also have had a reasonable chance to read them. A reference that first appears on the invoice, after the deal was agreed, usually comes too late.
Under Dutch contract law, a contract is concluded by an offer and its acceptance (Article 6:217(1) Dutch Civil Code). This general rule also applies to cross-border contracts governed by Dutch law. If the CISG governs the sale, its own rules on offer and acceptance decide whether your terms were included (Article 14 and Article 18 CISG); acceptance can follow from a statement or conduct, but silence alone is not acceptance (Article 18(1)).
In both systems the safest route is the same: refer to your terms in the quotation, attach them as a PDF and keep proof of what you sent and when. For the detailed rules, see when general terms and conditions apply under Dutch law.
Do you have to hand over your terms to a Dutch business?
If both businesses are established in the Netherlands, yes: give the other party a reasonable opportunity to read your terms, or it can annul the clauses. Under the CISG, terms the other party had no reasonable opportunity to read may not become part of the contract.
Under the Dutch rules, the annulment ground is in Article 6:233(b) Dutch Civil Code; how you give that opportunity is set out in Article 6:234. You hand the terms over before or when the contract is concluded, on paper, or make them available electronically in a way that allows the other party to store and consult them (Article 6:234(1) and (2)). If the contract itself is not concluded electronically, electronic provision requires the express consent of the other party (Article 6:234(3)). Filing with the Chamber of Commerce (KVK) is only a fallback (Article 6:234(1)); see the FAQ below.
The Supreme Court held that this system is exhaustive, but that the other party cannot annul a clause it knew or could be deemed to know when the contract was concluded, for example where the parties regularly conclude similar contracts and the terms were handed over with the first one (Hoge Raad 1 October 1999, ECLI:NL:HR:1999:ZC2977, para. 3.4).
Not every party can rely on these grounds (Article 6:235(1) and (3); see the FAQ below).
Between a Dutch and a foreign business, Articles 6:233 and 6:234 do not apply (Article 6:247(2)), but a mere reference is still risky. If the CISG governs, the Court of Appeal of The Hague held that general terms only form part of the contract if the parties agreed to include them and the other party had a reasonable opportunity to read them (Gerechtshof Den Haag 22 April 2014, ECLI:NL:GHDHA:2014:1341, paras. 10 to 15).
Selling to or buying from Dutch companies and not sure your terms will hold? Our contract lawyers in the Netherlands check which rules apply and how you offer your terms, so that the clauses you rely on bind your Dutch counterparty.
Which clauses in general terms can a Dutch court set aside?
If the Dutch rules apply, a clause that is unreasonably onerous for the other party can be annulled. In consumer contracts, a black list and a grey list add clauses that are always, or presumably, unreasonably onerous.
The open test is in Article 6:233(a) Dutch Civil Code: the court weighs the nature and content of the contract, how the terms came about, the mutually recognisable interests and the other circumstances. Between businesses the black list (Article 6:236) and the grey list (Article 6:237) do not apply directly; read more on the reflex effect of the lists in business contracts and on forbidden terms and conditions in Dutch contracts.
Where one business is established abroad, a Dutch court can still refuse to apply a clause if Dutch law governs the contract and applying it would be unacceptable by standards of reasonableness and fairness (Article 6:248(2)). If the CISG governs, it does not deal with the validity of a clause (Article 4(a) CISG); that question goes to the national law that applies. A Dutch court determines that law under the Rome I Regulation: first the law the parties chose (Article 3(1)); without a choice, a sale of goods is as a rule governed by the law of the country where the seller has its habitual residence (Article 4(1)(a)). That law also decides whether a clause is valid (Article 10(1)). For limitation of liability clauses, see our page on excluding liability in general terms and conditions.
Whose terms apply if your Dutch customer uses its own terms?
Under Dutch contract law, the terms referred to first apply, unless the second party expressly rejects them. Under the CISG, a reply that changes material points such as liability or dispute settlement is a counter-offer instead.
The Dutch rule is Article 6:225(3) Dutch Civil Code: if offer and acceptance refer to different general terms, the second reference has no effect unless it also expressly rejects the terms referred to first. Under the CISG, a reply that purports to accept but contains additions or modifications is a rejection and a counter-offer (Article 19(1) CISG); different terms on, among other things, price, payment, quality, delivery, liability or the settlement of disputes are deemed material (Article 19(3)). See our pages on the battle of forms under Dutch law and the battle of the forms under the Vienna Sales Convention.
What should your general terms contain for Dutch customers?
Good terms for the Dutch market cover the points that decide a dispute: scope and order of precedence, payment, retention of title, liability, warranties, delivery, governing law and the competent court. Each clause should match how you actually do business.
- In a commercial contract governed by Dutch law, a payment term of more than 60 days is only valid if it is expressly agreed and not grossly unfair to the creditor (Article 6:119a(5) Dutch Civil Code). If a large company buys from a small or medium-sized supplier, a payment term of more than 30 days is void (Article 6:119a(6)).
- Under Dutch law, a retention of title can only secure the price of goods delivered or to be delivered to the buyer under any contract between you, related work, and claims for failure to perform such contracts (Article 3:92(2)).
- Set a clear limit on your liability and a clear procedure for warranty claims; see our page on warranties in standard terms and conditions.
- For delivery, refer to one Incoterms rule and make sure your terms do not contradict it; see Incoterms in general terms and conditions.
- State which law governs, whether the CISG is excluded (Article 6 CISG) and which court or arbitral tribunal decides disputes.
- Choosing between terms and conditions in Dutch or English? See English terms and conditions under Dutch law.
What do you do when a Dutch customer says your terms do not apply?
Do not argue about the clause first. Establish which regime governs the contract, then collect the documents showing when your terms were referred to and sent; whether the clause applies at all depends on them.
In practice:
- Check where both parties are established and whether the contract is a sale of goods; that decides whether Article 6:247(2) and the CISG apply.
- Put the documents in date order: quotation, order, order confirmation, delivery note and invoice, each with its reference to general terms.
- Check whether the customer referred to its own purchase conditions and whether either party expressly rejected the other’s terms.
- Only then assess the clause itself against Article 6:233(a) or Article 6:248(2).
If the document trail is weak, a settlement that keeps the customer relationship can be the better route.
Example: a German supplier and a Dutch buyer
Suppose a German machine builder sends a Dutch food producer a quotation with its general terms attached, including a liability cap. The Dutch buyer places an order on its own purchase form, with its purchase conditions printed on the back, which provide for unlimited liability. The German supplier delivers without reacting.
The parties are established in different Contracting States, and a machine built to order with the supplier’s own materials is a sale of goods (Articles 1(1)(a) and 3 CISG). Unless the contract excludes the CISG (Article 6), it governs the sale and the Dutch rules on general terms do not apply (Article 6:247(2)). The order changes liability, a material point, so it is a counter-offer (Article 19(1) and (3) CISG). By delivering, the supplier may have accepted that counter-offer by conduct (Article 18(1) CISG). The liability cap the supplier counted on may therefore not be part of the contract. Expressly maintaining its own terms before delivering would have strengthened the supplier’s position.
When should you have a Dutch lawyer review your general terms?
Have your terms drafted or reviewed by a Dutch lawyer before you start selling to or buying from Dutch businesses at scale, when you open a Dutch branch, and as soon as a customer disputes that your terms apply.
- Your Dutch branch performs contracts with Dutch business customers, so the Dutch rules on general terms apply (Article 6:247(1) and (3)).
- A claim depends on a liability cap, a payment term or a retention of title in your terms.
See also having general terms and conditions reviewed by a Dutch lawyer.
How does MAAK Advocaten help with general terms and conditions?
MAAK Advocaten N.V. in Amsterdam drafts and reviews general terms for foreign companies doing business in the Netherlands, and acts in disputes about them, in negotiations and before the Dutch courts, including summary proceedings, at first instance and on appeal.
When I review a set of terms for a foreign company, I check three things first:
- who the Dutch counterparties are and where your contracts are performed, because that decides which rules apply;
- how and when your terms are referred to and sent in your quotations and order confirmations;
- the clauses that decide a dispute: liability, payment, governing law and the competent court.
Then we adjust the terms and the way your sales team uses them. In a dispute, we first secure the documents and deadlines, and then decide with you whether negotiation or proceedings best serve your commercial goal.
Which related topics does MAAK cover on general terms?
Each topic has its own page:
- When do general terms and conditions apply under Dutch law? (incorporation and providing the terms)
- Battle of forms in general terms under Dutch law and under the Vienna Sales Convention
- Excluding the CISG in general terms and conditions
- Excluding liability in general terms and conditions
- Forbidden terms and conditions in Dutch contracts
Frequently asked questions about general terms and conditions in the Netherlands
Do Dutch rules on general terms apply to a foreign company?
Not if one of the two businesses is established outside the Netherlands, whatever law governs the contract (Article 6:247(2) Dutch Civil Code). They do apply if your Dutch branch performs the contract, and to consumers living in the Netherlands (Article 6:247(3) and (4)).
Are general terms valid if they are only on your website?
Under the Dutch rules, only if you make them available electronically, before or when the contract is concluded, in a form the other party can store and consult (Article 6:234(2) Dutch Civil Code). These rules do not apply between a Dutch and a foreign business. Under the CISG, the fact that the terms could be read on a trade association’s website was not enough, because the seller had not clearly pointed the buyer to that website (ECLI:NL:GHDHA:2014:1341).
Do you have to file general terms with the Chamber of Commerce?
No. Filing with the KVK or a court registry only replaces handing over the terms if that is not reasonably possible; you must then announce the filing and offer to send the terms on request before the contract is concluded (Article 6:234(1) Dutch Civil Code).
Do your terms apply because you used them in earlier contracts?
Under the Dutch rules, only if the other party knew the terms or could be deemed to know them, for example because they were handed over with the first of regular, similar contracts (ECLI:NL:HR:1999:ZC2977). Under the CISG, seven earlier references did not help where the buyer never had a reasonable opportunity to read the terms (ECLI:NL:GHDHA:2014:1341, para. 16).
Who cannot annul a clause in general terms?
Under the Dutch rules: a legal entity referred to in Article 2:360 that published its latest annual accounts or to which the group exemption of Article 2:403(1) applied, a party with fifty or more people working for it (or registered as such), and a party that repeatedly uses the same or almost the same terms itself (Article 6:235(1) and (3) Dutch Civil Code).
Primary sources
- Dutch Civil Code (Burgerlijk Wetboek), Book 6: Articles 6:119a, 6:217, 6:225, 6:231, 6:232, 6:233, 6:234, 6:235, 6:236, 6:237, 6:247 and 6:248
- Dutch Civil Code, Book 3: Article 3:92
- UN Convention on Contracts for the International Sale of Goods (CISG): Articles 1, 3, 4, 6, 14, 18, 19 and 95
- Regulation (EC) No 593/2008 (Rome I): Articles 3, 4 and 10
- Hoge Raad (Supreme Court of the Netherlands) 1 October 1999, ECLI:NL:HR:1999:ZC2977
- Gerechtshof Den Haag (Court of Appeal of The Hague) 22 April 2014, ECLI:NL:GHDHA:2014:1341
- UNCITRAL, status of the CISG
Need a Dutch lawyer for your general terms and conditions?
Doing business with Dutch companies, or facing a customer who disputes your terms? Contact me through my page as a contract lawyer in the Netherlands and describe your situation. I will tell you which rules apply to your contracts, what to change in your terms and how you offer them, and act for you if a dispute about them arises. — Remko Roosjen
