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Incoterms® are not law. They are rules of the International Chamber of Commerce that, as a rule, bind you only if your contract refers to them, ideally in the form “FCA Rotterdam Incoterms® 2020”. General terms and conditions can make one Incoterm the default for every order, but between businesses that are not both established in the Netherlands, the Dutch rules on general terms do not apply (Article 6:247(2) DCC).
This page is for foreign and Dutch suppliers that sell goods across borders on standard terms, and for buyers that receive such terms. It explains how to include an Incoterm in your general terms, what happens when the other party’s terms say something else, and what Incoterms leave open. Want your delivery clause checked? Have a Dutch contract lawyer review your general terms before you send them with your next quotation.
Are Incoterms legally binding under Dutch law?
As a rule, only if the parties agreed to apply them. The ICC describes the Incoterms® rules as a set of eleven three-letter trade terms that clarify the tasks, costs and risks involved in delivering goods from sellers to buyers, for international and domestic contracts (ICC, Incoterms® rules). They are a private set of rules, not a statute.
Under the CISG, parties are also bound by usages they agreed to and, unless otherwise agreed, by usages they knew or ought to have known and that are widely known and regularly observed in international trade (Article 9 CISG). Under Dutch law, a contract also has the legal effects that follow from custom (Article 6:248(1) DCC). Do not rely on either: write the rule, the named place and the version in the contract. The current version took effect on 1 January 2020 (ICC).
How do you include an Incoterm in your general terms and conditions?
By naming the rule, the place and the version, and by stating what prevails if an order says something else. A delivery clause such as “Unless otherwise agreed in writing, delivery takes place FCA our warehouse in Tilburg, Incoterms® 2020” works for every order.
- Name a precise place: a warehouse address or terminal, not just a city.
- State the version (Incoterms® 2020), so that there is no discussion about which edition applies.
- Add a priority rule: an Incoterm in a signed order confirmation prevails over the default in the general terms.
- Make sure the rest of your terms do not contradict the Incoterm, for example a separate clause on transport insurance, risk or delivery dates.
Then make sure your general terms are part of the contract. Between Dutch businesses, standard terms that the other party accepted bind it even if it did not know their content (Article 6:232 DCC), but a clause can be annulled if the user did not give a reasonable opportunity to read the terms, which normally means handing them over before or when the contract is concluded (Articles 6:233(b) and 6:234 DCC). Larger businesses, such as companies that publish their annual accounts or have 50 or more employees, cannot invoke these grounds (Article 6:235(1) DCC). Our page on general terms and conditions under Dutch law explains those rules.
Do Dutch rules on general terms apply to a foreign customer?
No, not between businesses that are not both established in the Netherlands. In that case the Dutch statutory section on general terms does not apply, whatever law governs the contract (Article 6:247(2) DCC). A party is established in the Netherlands if its principal place of business is there, or the branch that has to perform the contract (Article 6:247(3) DCC).
The consequence works both ways. A foreign buyer cannot annul an unreasonably onerous clause under Article 6:233 DCC, and a Dutch supplier cannot rely on the Dutch rules on how terms become binding. Whether your terms are part of the contract then depends on the general rules on contract formation of the applicable law, which for a cross-border sale of goods is often the CISG (Articles 1 and 14 CISG). If Dutch law governs the contract, a clause can still be set aside if applying it would be unacceptable by standards of reasonableness and fairness (Article 6:248(2) DCC).
In practice: send your terms with the quotation, refer to them in the order confirmation and ask for a signed copy. For important customers, put the Incoterm in the framework agreement or the order itself, where incorporation is not in doubt. See our page on choice of Dutch law in international contracts.
What happens if the buyer’s terms name a different Incoterm?
That depends on which rules govern the formation of the contract. Under Dutch law, if offer and acceptance refer to different general terms, the second reference has no effect unless it expressly rejects the first terms (Article 6:225(3) DCC). That rule is known as the first-shot rule.
Under the CISG, a reply that purports to accept but contains modifications is a rejection and a counter-offer (Article 19(1) CISG). Terms about the place and time of delivery, price, payment, liability and the settlement of disputes are considered material (Article 19(3) CISG). A different Incoterm in the buyer’s purchase order is therefore a material change, and the terms of whichever party had the last word, for example by shipping or accepting the goods, may end up governing the contract. Our page on the battle of forms under Dutch law sets out both rules.
Is a large customer pushing its own purchase conditions with a different delivery term? Contact our Dutch law firm in Amsterdam before you confirm the order; we tell you which terms will apply and how to word your confirmation.
Which Incoterm suits your general terms?
The one that matches what you actually do in logistics. A seller that never arranges transport has little reason to promise delivery at the customer’s door, and a buyer that has its own forwarder will prefer to collect the goods.
| If you as seller… | Consider | Watch out for |
|---|---|---|
| only make the goods available at your own premises | EXW (Ex Works) | Agree who loads the goods and who handles export clearance |
| hand the goods to the buyer’s carrier at your premises or a terminal | FCA (Free Carrier) | Name the exact place; for sea transport, agree whether an on-board bill of lading is needed |
| transport the goods to the buyer’s country, without import clearance | DAP (Delivered at Place) | Under DAP the seller does not unload the goods; agree unloading separately |
| transport the goods and also clear them for import | DDP (Delivered Duty Paid) | Import duties and, for some goods, EU import obligations such as CBAM |
The ICC has published the full rules in the official Incoterms® 2020 publication; check the obligations of the rule you choose in that text (ICC, Incoterms® 2020). For goods covered by CBAM or the EU Deforestation Regulation, the choice between DAP and DDP also decides who carries the import obligations; see our page on EUDR, CBAM and Incoterms 2020.
What do Incoterms not regulate?
Price, payment, ownership, the remedies for breach and the limitation of liability. Incoterms deal with the tasks, costs and risks of delivery; everything else has to be agreed in the contract or in your general terms.
Ownership is a good example. The CISG does not deal with the effect of the contract on the property in the goods (Article 4(b) CISG), so a seller that wants to keep ownership until payment needs a retention of title clause that is valid under the applicable property law. Under Dutch law, such a clause is possible for the price of goods delivered (Article 3:92 DCC); see our page on the retention of title under Dutch law.
Risk is linked to delivery. Under Dutch sales law, the goods are at the buyer’s risk from delivery (Article 7:10(1) DCC); under the CISG, risk passes according to Articles 66 to 69, for example on handover to the first carrier (Article 67(1) CISG). The Incoterm defines where and when delivery takes place, so it effectively fixes the moment risk passes.
Practical example: a Dutch supplier and a foreign buyer
Suppose a Dutch manufacturer of packaging machines sends a quotation with its general terms, which provide for delivery “FCA our factory in Eindhoven, Incoterms® 2020”. The buyer, a company established outside the Netherlands, replies with a purchase order on its own terms, which state “DAP buyer’s plant”. The manufacturer ships without comment, and the machine is damaged during transport.
The Dutch rules on general terms do not apply between these parties (Article 6:247(2) DCC). Assume the CISG governs the sale. The purchase order then changed the place of delivery, which is material (Article 19(1) and (3) CISG), so it was a counter-offer that the manufacturer may have accepted by shipping. If DAP applies, the risk was still with the manufacturer during transport. A short written confirmation of the delivery term before shipment, or a framework agreement with FCA, would have prevented the dispute.
When do you need a Dutch lawyer for Incoterms and general terms?
When you draft or revise your general terms for export, when a large customer insists on its own purchase conditions, and when goods are lost or damaged and the parties disagree on who bore the risk.
MAAK Advocaten in Amsterdam drafts general terms and international sale and supply contracts under Dutch law, and acts in disputes about delivery, risk and payment at first instance and on appeal. The Dutch version of this topic is on our Dutch site: Incoterms in algemene voorwaarden. For other contracts, see our Dutch contract lawyers.
Frequently asked questions about Incoterms in general terms and conditions
Are Incoterms legally binding?
As a rule, only if the contract refers to them. Incoterms are ICC rules, not law. Under the CISG, parties can also be bound by widely known trade usages (Article 9 CISG), but it is safer to name the rule, the place and the version in the contract.
Which Incoterms version applies if I only write “FCA”?
That is open to debate. Name the version, for example “FCA Rotterdam Incoterms® 2020”. Incoterms® 2020 took effect on 1 January 2020, but earlier versions can still be agreed.
Do Dutch rules on general terms apply to my foreign customer?
No, if both of you act in the course of business and are not both established in the Netherlands (Article 6:247(2) DCC). Whether your terms are part of the contract then depends on the general formation rules of the applicable law, often the CISG.
What if my customer’s terms use a different Incoterm?
Under Dutch law, the first reference to general terms usually prevails (Article 6:225(3) DCC). Under the CISG, a different delivery term in the reply is a material change and a counter-offer (Article 19 CISG). Confirm the delivery term in writing before shipping.
Does an Incoterm transfer ownership of the goods?
No. Incoterms deal with tasks, costs and risks of delivery. Ownership follows the applicable property law; under Dutch law, you can retain title until the price is paid (Article 3:92 DCC).
Primary sources
Dutch statutes are only officially available in Dutch, on wetten.overheid.nl. Judgments can be found on rechtspraak.nl by their ECLI number. Legal position checked on 28 October 2026.
- Dutch Civil Code (Burgerlijk Wetboek): Article 3:92; Articles 6:225, 6:232, 6:233, 6:234, 6:235, 6:247 and 6:248; Article 7:10
- UN Convention on Contracts for the International Sale of Goods (CISG): Articles 1, 4, 9, 14, 19 and 67
- International Chamber of Commerce: Incoterms® rules and Incoterms® 2020
