General terms and conditions are standard provisions that an entrepreneur applies in all his contracts without negotiating on a case-by-case basis. Under Dutch law, they are valid after acceptance and a reasonable opportunity to review them. Internationally, this works differently. In our practice, we see that the general terms and conditions of Dutch exporters in Germany or France often turn out to be invalid — precisely at the moment you need them.
What is the legal problem?
General terms and conditions apply only if the counterparty has actually accepted them and has had the opportunity to review their contents. Internationally, stricter requirements apply regarding delivery, language, and the moment of acceptance. A reference on the back of an invoice is almost always insufficient internationally. In the event of a dispute, it is often precisely the limitation of liability or choice of forum on which you relied that lapses.
What does the law say?
Under Dutch law, Article 6:233 of the Civil Code governs grounds for annulment of general terms and conditions; Article 6:234 of the Civil Code governs the provision of the terms and conditions. Unreasonably onerous clauses are voidable. For German counterparties, the Allgemeine Geschäftsbedingungen-Recht (Sections 305-310 BGB) applies, which provides for strict transparency and content control. Under French law, Article 1119 of the Code Civil stipulates that general terms and conditions must be accepted prior to conclusion.
In the case of international sales between contracting states, the Vienna Sales Convention applies. According to settled case law of the German Bundesgerichtshof (NJW 2002, 370), the CISG requires the active provision of the terms and conditions prior to or at the time of contract conclusion; A single reference is not sufficient.
What risks do companies face?
If general terms and conditions are not valid, only statutory rules apply. No limitation of liability, no choice of forum, no shortened limitation period, no retention of title. You can be held liable for consequential damages that you specifically wanted to exclude. Foreign courts are strict, especially if the text was only available in Dutch. In our practice, the difference between valid and invalid terms and conditions is, on average, a factor of 5 to 10 in liability.
Practical example from our practice
We represented a Dutch wholesaler with a German customer. The general terms and conditions were only available in Dutch on the website. The German court ruled under Section 305, paragraph 2 of the German Civil Code that the terms and conditions had not been accepted because they had not been provided in an understandable language prior to the conclusion of the contract. The limitation of liability lapsed. Compensation of 380,000 euros. With German-language terms and conditions included with the quotation and explicit acceptance in the order confirmation, liability was limited to 25,000 euros.
What can you do?
Translate your general terms and conditions into English at a minimum, preferably in the language of the counterparty. Actively provide the terms and conditions before or with the quotation. Refer to them explicitly in the quotation, order confirmation, and contract. Confirm acceptance in the order confirmation. Align the content with the chosen applicable law. For B2B export to Germany or France: have a separate country version drawn up. See also our article on How to draft an effective limitation of liability?