A word on general conditions under Dutch law

A Dutch lawyer can inform you on  specific rules for general terms and conditions used by companies. Some rules are inspired by European regulations.The Dutch Civil Code contains explicit mandatory provisions governing the use of standardized terms.

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Standard Clauses in Dutch Contracts

Whether or not clauses contained in standardized terms are enforceable under Dutch law, depends on the nature of the party against whom the terms may be enforced, more specifically whether that party is a large entrepreneur, a small entrepreneur or a consumer.

Protection against unfair contract terms

If at the time of the conclusion of the contract, the other party is a legal entity that has published its annual accounts or has fifty or more employees, it qualifies as a “large entrepreneur.” The provisions relating to standardized terms do not protect such “large entrepreneur.” In case of a large entrepreneur as a contractual counterpart, the answer to the question whether contract clauses (either individually made or contained in standardized terms) are enforceable, depends on the test of reasonableness and fairness.

Void conditions in Dutch agreements

That’s a vague criterion, but it has overriding effect in Dutch law. With respect to other entrepreneurs, a standardized term may be voidable in view of the nature of the remaining contents of the contract, the way in which the standardized terms came into existence, the mutually known interests of the parties and the other circumstances of the case, it is unreasonably onerous for the other party, or if the enforcing party did not offer to the other party a reasonable possibility to be informed of the standardized terms.These two criteria resemble the foreign (i.e. non-Dutch) concept of unconscionability.

Black-listed clauses in Dutch Civil Code

For consumers, the Dutch Civil Code contains a so-called “grey list ” and a “black list” of provisions that are deemed unreasonably onerous when contained in contracts. The statutory provisions containing the black list and grey list can also effect non-consumer contracts, which is why I decided to briefly mention this in this e-mail.

A party who supplies good or services to a consumer may “get stuck” between the consumer and a preceding party, with whom he contracted in respect of the same goods or services, in that a clause in the consumer contract is subject to avoidance based on the black list or the grey list, whereas a similar clause in the contract with the preceding party is not.

In such a case the clause in the contract with the preceding party can also be avoided, if relying on that clause would be unreasonable because of the close connection with a clause contained in standardized terms that has been avoided.

Of relevance may also be article 6:247.2 of the Dutch Civil Code, which regulates that if both parties are entrepreneurs, but not both established in The Netherlands, then the provisions concerning standardized terms (say: the grey and black lists) are not applicable. This is basic knowlegde for a Dutch solicitor so don’t hesitate to mail me any questions you may have.

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