Whether you are acting as a consumer or in the capacity of a legal entity, we all have to deal with general terms and conditions. A consumer or legal entity quickly becomes bound by the user's general terms and conditions. So it can come in handy to know exactly how that bond works, and in what cases a clause from the general terms and conditions can be disapplied.
When are you bound by general terms and conditions?
General terms and conditions are drawn up by a company with the aim of becoming part of (future) agreements. The party using the general terms and conditions is called the user. The party with whom the user of general terms and conditions enters into an obligation is called the other party. General terms and conditions are almost always accepted by the other party without its (conscious) express agreement. The law states that an opposing party is also bound by the general terms and conditions if, at the conclusion of the contract, the user understood or should have understood that she was not aware of their contents.
Thus, the other party almost automatically becomes bound by the general terms and conditions, unless it objects to the applicability of the general terms and conditions. Even if the other party has not read the general terms and conditions, it becomes bound by them. In practice, it soon comes down to the fact that you, as the other party, are bound by the general terms and conditions the moment you enter into an agreement with the user.
As the other party, can I challenge the general terms and conditions?
Despite being quickly bound by the general terms and conditions, the other party has a number of options to challenge the applicability of the general terms and conditions. First, the general terms and conditions are voidable if the user has not given the other party a reasonable opportunity to learn about the general terms and conditions. This is called the user's duty of information. This is because the user has a legal obligation to make its general terms and conditions known to the other party before the contract is concluded. The user of the general terms and conditions has the obligation to take the initiative to offer the other party an opportunity to take note of the general terms and conditions. It must be clear to the other party which conditions apply and the other party must be able to easily take note of their contents. It is not enough that the general terms and conditions are somewhere on the user's website and that the consumer could find them with a search.
Secondly, general terms and conditions can be annulled if they are unreasonably onerous for the other party. The law contains the so-called black and gray list. These lists list clauses that (can) be unreasonably onerous for the other party. The difference between the two is that a clause on the black list is automatically regarded as unreasonably onerous so that its refutation by the user is not possible, while a clause on the gray list is presumed to be unreasonably onerous. The latter means that the user still has the opportunity to offer rebuttal evidence.
Unlawful black-listed clauses include clauses that deprive the other party of its right to demand the performance promised by the user or clauses that exclude or limit the other party's right to terminate the contract.
Please note: the other party can only annul the general terms and conditions on the basis of the gray/black list if he is a natural person not acting in the exercise of a profession or business. In other words, a consumer. If the other party is a company, this ground for annulment cannot be invoked. The exception to this is that some small businesses can still invoke the black/gray list if, for example, the contract is not significantly distinguishable from a consumer transaction. This could include small associations or foundations, as well as agreements that lie outside the area of the professional activity of the other party. This is called the reflex effect of the black/gray list.
Want to know more?
If you have any questions about general terms and conditions or contract law in general, please feel free to contact one of our lawyers.