The Bottom Line
- Timing is everything: Relying on general terms and conditions sent after an agreement is made (e.g., attached to an invoice) is a failed strategy. A Dutch court just confirmed they are not part of your contract.
- Review your process: Businesses must ensure their T&Cs are actively provided to counterparties before or at the moment of concluding a deal. A mere reference or later attachment is not enough.
- The risk is real: Failure to properly incorporate your terms can render crucial clauses on payment, liability, and disputes void, leaving your company exposed and unable to enforce its standard protections.
The Details
This ruling from the Zeeland-West-Brabant District Court serves as a sharp and practical reminder of a foundational principle of contract law. The case involved a dispute where a client sought to rely on its own general purchasing conditions to reject an invoice. The critical fact, however, was that these conditions were only sent to the supplier after the agreement was already concluded, attached to subsequent correspondence. The court made short work of this argument, invalidating the terms and ruling in favor of the supplier.
The court’s reasoning is built on the core requirement of offer and acceptance. For general terms and conditions to be legally binding, they must form part of the agreement from the very beginning. The Dutch Civil Code is clear that the other party must have had a reasonable opportunity to take note of the terms before being bound by them. Sending them after the fact is a unilateral attempt to alter a deal that has already been struck. The court affirmed that silence or failure to protest the late-arriving terms does not constitute acceptance.
For CEOs and legal counsel, the takeaway is clear: process discipline is paramount. Your standard terms and conditions, which are designed to protect your business, are worthless if not correctly incorporated into your contracts. This ruling underscores that you cannot retroactively apply protections. Businesses must ensure their sales and procurement workflows include a clear, auditable step where T&Cs are provided and acknowledged before any binding commitment is made. Assuming they will apply by default is a direct route to losing a dispute.
Source
Rechtbank Zeeland-West-Brabant
