THE BOTTOM LINE
- Aggressive enforcement has limits: A Dutch court has signalled that demanding full payment on a multi-year B2B contract after a minor breach can be deemed “unacceptable.” Companies relying on rigid terms and conditions to claim full fees for services never rendered face significant legal risk.
- No consumer “cooling-off” for businesses: The court confirmed that even very small businesses (sole proprietors) are not entitled to the 14-day statutory cooling-off period that protects consumers in off-premises contracts. The B2B/B2C distinction remains firm on this point.
- Acceleration clauses are vulnerable: Contract clauses that make all future payments immediately due upon a single default (acceleration clauses) will be heavily scrutinized. If the outcome is disproportionate to the breach, courts may set them aside based on principles of reasonableness and fairness.
THE DETAILS
This case involved a dispute between CineFox, a cinema advertising company, and the owner of a small beauty salon. The salon owner signed a three-year advertising contract at her place of business but attempted to cancel it by email five working days later. The contract’s terms and conditions, printed on the reverse, stipulated a strict two-working-day cancellation window. Citing this missed deadline, CineFox refused the cancellation. When the salon owner failed to pay the first annual invoice, CineFox invoked an acceleration clause in its terms, demanding the full payment for all three years—a sum exceeding €6,000 for a service that was never delivered.
The salon owner argued that as a very small business, she should be afforded consumer-like protections, specifically the 14-day cooling-off period common in off-premises sales. The District Court of East Brabant decisively rejected this argument. It referenced Dutch parliamentary history and Supreme Court precedent, clarifying that lawmakers intentionally excluded businesses from this protection. The court affirmed that a signed contract is binding, and the business could not rely on consumer law to escape its obligations. This serves as a crucial reminder for all businesses: B2B agreements operate under a different, stricter set of rules.
However, the court then took a dramatic turn, invoking the overriding Dutch legal principle of “reasonableness and fairness.” It ruled that CineFox’s conduct was, in these specific circumstances, “unacceptable.” Demanding the full three-year fee when the cancellation was only three days late, and where no actual advertising work had been done, was deemed a disproportionate and excessive outcome. The court found it unreasonable for CineFox to receive full payment for zero performance, especially when it could likely resell the advertising space. It slashed the claim by over 90%, awarding CineFox only 25% of the first year’s fee as compensation for its sales and administrative costs and rejecting the claim for the second and third years entirely.
SOURCE
Source: Rechtbank Oost-Brabant
