The clash of general terms and conditions in the new law of obligations

1. The principle of prior notice remains

As before, the rule remains that general terms and conditions can only be invoked if:

• on the one hand, an effective perusal has taken place or at least the possibility of effective perusal has been offered and;
• on the other hand, it can be demonstrated that the general terms and conditions have been accepted.

If general terms and conditions are to be enforceable against your contracting party, then it must be ensured that the latter actually takes note of them and accepts them. This can be done by including it in the contract itself and having it signed together with the contract (e.g. if only a purchase offer, a quotation form or measurement statement is involved, then it is better to refer to your general terms and conditions on this document and include them in the signature at the same time).

A similar rule already applies under "former contract law". In the new legislation, this basic principle is also given a legal basis.

2. Conflict between a party's general terms and conditions and those of the contract

The new law of obligations ensures that priority is given to the negotiated terms and conditions in the event of a conflict with the general terms and conditions of one of the parties.

Therefore, you will not be able to simply invoke your own general terms and conditions when the contract you have negotiated contains other terms and conditions. If you wish to avoid a contradiction, then it is wise to check the contract carefully and negotiate thoroughly with your potential contracting party so that consent can be reached on whether or not they are applied.

Again, it is of the utmost importance that special care and attention be given to the conclusion of a contract from the outset.

3. Conflict between the parties' general terms and conditions

When the offer and acceptance of a contract refer to the general terms and conditions of each of the parties themselves, then the contract comes into existence and both general terms and conditions form part of the contract, with exception however of those terms and conditions that are incompatible. This is an important innovation.

The general terms and conditions of each party are therefore also to be considered part of the contract, except for those clauses which are in contradiction with each other.

However, there is an exception to this principle, namely when a party expressly indicates in advance or without undue delay after receiving acceptance, and not through general terms and conditions, that it does not want to be bound by the general terms and conditions of the other party. In that case, the contract is still not formed.

Therefore, if you do not wish to be bound by your counterparty's general terms and conditions, you must state this explicitly and immediately. Otherwise, you will be bound by them, insofar as there are no contradictions with your own general terms and conditions.

Should you have any questions on this subject, please do not hesitate to contact our specialists at info@seeds.law or +32 (0)2 747 40 07.