THE BOTTOM LINE
- Your T&Cs are only valid if sent on time: In cross-border B2B sales, ensure your general terms and conditions are provided to the buyer before the contract is finalized. A Dutch court confirmed that an email with the T&Cs sent just before the signing was sufficient to make them legally binding.
- “As is” clauses carry significant weight: When professional parties agree to an “as seen” or “as is, without warranty” sale for used equipment, courts will place a heavy burden on the buyer to prove a defect claim, reinforcing that the buyer assumes a higher level of risk.
- A buyer’s duty to inspect is not a formality: Relying solely on an online advertisement’s description like “good technical condition” is insufficient for a professional buyer of used heavy machinery. The court expects buyers to conduct their own due diligence or accept the consequences.
THE DETAILS
The case involved an Austrian company that purchased a second-hand truck with a 17-year-old crane from a Dutch seller, Clean Mat Trucks B.V., for €178,000. The truck was advertised online as being in “good technical condition.” Shortly after the purchase, the Austrian buyer discovered significant issues with the crane and incurred over €15,000 in repair costs. The buyer sued the Dutch seller for damages, arguing the truck was defective (non-conforming) and did not match the quality promised in the advertisement. The seller refused to pay, pointing to a clause in the sales agreement stating the truck was sold “as seen without warranty” and referencing its general terms and conditions (T&Cs).
The first critical issue for the court was whether the seller’s T&Cs were part of the contract. The buyer argued they were sent too late, but the court found otherwise. The seller provided evidence of an email, sent prior to the final agreement, which included the T&Cs and instructions to sign and return them along with the main contract. Furthermore, the buyer had signed the purchase agreement, which explicitly acknowledged receipt and acceptance of these T&Cs. The court ruled that this gave the buyer a “reasonable opportunity” to review the terms, making them fully enforceable. This was a crucial victory for the seller, as the T&Cs excluded the UN’s Vienna Sales Convention (CISG) and stipulated that Dutch law would govern the dispute.
Under Dutch law, the buyer’s claim ultimately failed. The court emphasized that this was a transaction between two professional businesses, not a consumer sale with its associated protections. For a used truck with an aging crane, sold “as seen,” the buyer had a strong duty to investigate its condition beyond the seller’s general advertisement. By failing to arrange a thorough inspection before purchase, the buyer accepted the inherent risks. The court upheld the “as seen without warranty” clause, effectively blocking the defect claim. On top of this, the seller’s T&Cs contained clauses excluding liability for damages on used equipment and requiring the buyer to give the seller an opportunity to inspect and repair any alleged defects—a step the buyer had skipped by immediately commissioning their own repairs.
SOURCE
Source: Rechtbank Gelderland
