Hollandiya qanunlarına əsasən formalar döyüşü: kimin ümumi şərtləri üstünlük təşkil edir?

In a battle of forms under Dutch law, the first set of general terms usually wins. The main exception is that the second party can displace those terms by expressly rejecting them, and in an international sale of goods the Vienna Sales Convention (CISG) may lead to a different result.

The rule is in article 6:225 paragraph 3 of the Dutch Civil Code (Burgerlijk Wetboek, BW). Where an offer and an acceptance refer to different general terms and conditions, the second reference has no effect unless it also expressly rejects the terms referred to first. The Netherlands therefore applies a first shot rule. It does not apply the last shot rule known from English and American practice, and it does not apply a knock-out rule.

That rule decides most disputes about small print between businesses. It is, however, only the first of three hurdles. Your terms must also have been made available in time, and you must be a party that may rely on the incorporation rules at all.

What is a battle of forms?

A battle of forms arises when both parties want to do business on their own standard terms. The commercial deal is clear; the question is which set of clauses governs it.

A typical example: a supplier sends a quotation that refers to its general terms and conditions (algemene voorwaarden). The buyer replies with a purchase order that refers to its own terms. Both documents describe the same transaction, but they allocate risk differently. The differences usually concern liability caps, warranty periods, retention of title, payment terms, penalties, applicable law and the competent court.

The exchange matters because each document is an offer or an acceptance within the meaning of article 6:217 BW. Under article 6:225 paragraph 1 BW, an acceptance that deviates from the offer counts as a rejection of that offer and as a new offer. If the deviation concerns only minor points, article 6:225 paragraph 2 BW provides that the contract is still concluded on the terms of the acceptance, unless the offeror objects to the difference without delay. Paragraph 3 then adds the specific rule for competing sets of general terms.

There is no battle where the parties negotiate one bespoke contract, or where one party signs the other party’s terms without reservation. Contracts with consumers also work differently, because additional mandatory protections apply to them.

Which terms apply under article 6:225 paragraph 3 BW?

The terms referred to first apply, unless the second party expressly rejects them. The rule is mechanical, and that is what makes it useful.

If the supplier refers to its terms in the quotation and the buyer only refers to its own terms in the order, the buyer’s reference has no effect. The supplier’s terms apply. The buyer can only change that result by expressly rejecting the supplier’s terms. In Dutch practice this is done with a standard sentence stating that the applicability of any general terms used by the other party is expressly rejected (uitdrukkelijk van de hand gewezen).

What happens if the buyer rejects the supplier’s terms?

The buyer’s order then becomes a genuine new offer, and the supplier must decide whether to accept it. The position changes, but it does not automatically reverse.

A supplier who delivers without comment risks being taken to have accepted the buyer’s terms. The practical answer is to reject the rejection in the order confirmation, and to keep doing so until the point is settled.

What if both sets of terms contain a rejection clause?

Then the outcome is uncertain. The court looks at the full exchange and at what the parties did next. It may conclude that one set was accepted by conduct, or that neither set applies. If neither set applies, the general rules of the Civil Code govern the contract. For most commercial risks those rules are less favourable to a supplier than its own terms would have been.

Two lessons follow for your own documents. First, put the reference to your terms in your first document, not in the invoice. Second, include a clause that rejects the other party’s terms in advance. Such a clause costs nothing and, given article 6:225 paragraph 3 BW, it is one of the most useful sentences in your paperwork.

How do you get your terms incorporated? (articles 6:233 and 6:234 BW)

You must give the other party a reasonable opportunity to read your terms, in principle by handing them over before or when the contract is concluded. If you do not, the other party can annul the clauses, even if your terms came first.

Article 6:232 BW confirms that a party is bound by general terms even if it did not know their content. Article 6:233 BW, however, allows that party to annul a clause on two grounds. The first is that the clause is unreasonably onerous, taking all circumstances into account. The second is that the user did not give the other party a reasonable opportunity to take note of the terms.

What counts as a reasonable opportunity?

Article 6:234 BW sets this out. The main route is to hand over the terms before or when the contract is concluded. Only if that is not reasonably possible may you instead tell the other party, before the contract is concluded, that the terms are available for inspection or have been deposited with the Chamber of Commerce or a court registry, and that they will be sent on request.

For electronic provision, article 6:234 paragraph 2 BW requires that you make the terms available before or at conclusion in a way that allows the other party to store them and consult them later, for example as an attachment or a downloadable file. If the contract itself is not concluded electronically, this electronic route requires the other party’s express consent under paragraph 3. A hyperlink in an email footer, a bare reference to a website, or terms printed on the back of an invoice sent after delivery will often fail this test.

Does the language of the terms matter?

Yes, it can. Terms drafted only in Dutch and supplied to a foreign counterparty who negotiated the deal in English can be challenged as not reasonably accessible. Keep a version in the language of the negotiations.

The party that relies on the terms must prove that they were provided in time. Your defence is therefore documentary: dated quotations, sent items, delivery receipts and, for a webshop, a log showing that the customer accepted the terms.

Who may rely on the incorporation rules?

Not everyone. Large companies and parties outside the Netherlands often cannot invoke articles 6:233 and 6:234 BW, and this surprises many businesses.

Is a large company protected?

Usually not. Under article 6:235 BW a party cannot invoke those articles if it is a legal entity that publishes its annual accounts under Dutch company law, or if it employs fifty or more persons when the contract is concluded.

A substantial company that received terms it never read is therefore bound by them, however inaccessible they were. Its only remaining argument is that a specific clause is unacceptable by standards of reasonableness and fairness under article 6:248 paragraph 2 BW.

What if the other party is based abroad?

Then the section on general terms and conditions does not apply. Article 6:247 paragraph 2 BW excludes contracts between parties acting in the course of a business or profession who are not both established in the Netherlands, whatever law governs the contract.

In a sale between a Dutch supplier and a German or Belgian buyer, the incorporation rules of articles 6:233 and 6:234 BW therefore fall away, even if Dutch law has been chosen. What remains is article 6:225 paragraph 3 BW, ordinary contract interpretation and the general standard of reasonableness and fairness.

Do the black and grey lists protect businesses?

In principle, no. The black and grey lists of articles 6:236 and 6:237 BW declare certain clauses unreasonably onerous, outright or presumptively, and they apply to consumers. Courts give them some reflex effect only for very small businesses whose position resembles that of a consumer.

How does a Dutch court read the exchange of documents?

Where the sequence is unclear, the court interprets the whole exchange. It asks what the parties could reasonably infer from each other’s statements and conduct, and what they could reasonably expect from each other.

Article 6:225 paragraph 3 BW only gives a clear answer where the sequence is clear. In practice documents overlap, terms are mentioned in some messages but not in others, and the parties have traded before. The court then applies the Haviltex standard. Four elements carry most of the weight:

• The wording of each document, in particular whether it refers to general terms and whether it expressly rejects the other set.
• Tərəflərin nəticədən əvvəl, nəticə zamanı və nəticədən sonrakı davranışı, o cümlədən etirazın edilib-edilməməsi və nə qədər tez bildirilməsi.
• The course of dealing between the same parties: terms used consistently and never disputed in earlier transactions are more readily taken to apply.
• Established usage in the trade, which can point to a sector-wide set of conditions.

Where the exchange is genuinely inconclusive, the court can still hold that a particular clause is unacceptable in the circumstances under article 6:248 paragraph 2 BW. It can also find that no agreement was reached on the disputed point at all. The default rules of the Civil Code then fill the gap. A liability cap that falls away in this way exposes the supplier to full damages under article 6:74 BW. That is why suppliers usually have more to lose from an unresolved battle than buyers.

What changes in a cross-border sale?

Three separate regimes can apply to the same international sale: Rome I, the CISG and the rules on jurisdiction. Each answers a different question, and the CISG in particular can set aside the Dutch first shot rule.

Müqavilə hansı qanunla tənzimlənir?

That follows from the Rome I Regulation. The parties may choose the applicable law. Without a choice, a contract for the sale of goods is governed by the law of the country where the seller has its habitual residence.

A choice of Dutch law in your general terms only helps if those terms were incorporated, which is exactly what is in dispute. Put the choice of law in the body of the contract as well.

Does the Vienna Sales Convention apply?

Often it does, automatically. The United Nations Convention on Contracts for the International Sale of Goods (CISG, in Dutch the Weens Koopverdrag) applies of its own force to commercial sales of goods between parties established in different contracting states. The Netherlands is one of them.

It is easy to forget that a choice of Dutch law includes the CISG, because the Convention is part of Dutch law. Excluding it requires an express provision. Under article 19 CISG, a reply with additions or modifications that materially alter the offer is a counter-offer. Terms on liability, payment, quality, quantity, delivery and the settlement of disputes count as material. That points towards a last shot outcome, although courts in several contracting states apply a knock-out approach instead, and the question is not settled uniformly. The practical lesson: you cannot assume the Dutch first shot rule in an international sale of goods.

Hansı məhkəmənin səlahiyyəti var?

That is a third and separate question. Within the European Union a choice of court agreement is governed by the Brussels I bis Regulation and must meet its formal requirements. If the clause is valid, the chosen court has exclusive jurisdiction and other courts must decline.

An arbitraj müqaviləsi works differently again. It falls outside that Regulation and is assessed under the arbitration law of the seat. A dispute clause hidden in general terms that were never incorporated is worth nothing. Repeat the choice of law, forum and language in the signed document.

Təchizatçı olaraq nəyi yoxlamalısınız?

By organising your sales process, not by clever drafting. Because the first reference prevails, your terms must travel with the earliest document, and your staff must notice when the other party fires back.

• Sitatdakı ümumi şərtlərinizə istinad edin və onları danışıqların dilində əlavə edin ki, istinad və mətn bir araya gəlsin.
• Include a clause that rejects in advance the applicability of any general terms used by the other party, and repeat it in the order confirmation.
• Check incoming purchase orders and confirmations for a rejection clause, and respond in writing before performance starts. Silence followed by delivery is the classic way to lose a position you had already won.
• Deposit your terms with the Chamber of Commerce or a court registry as a fallback, and keep a dated record of every version, so that you can prove which text applied when the contract was concluded.
• Use a signed framework agreement for a continuing relationship, and state in it that it prevails over any terms referred to in individual orders.
• Beynəlxalq satışlar üçün yalnız şərtlərdə deyil, imzalanmış sənədin özündə qanun seçimini, CISG-nin tətbiq olunub-olunmadığını, forumu və dili qeyd edin.

Alıcı olaraq nəyi yoxlamalısınız?

As a buyer you face the same first shot rule of article 6:225 paragraph 3 BW, usually from the other side. Check:

• Did the supplier’s quotation refer to its terms, and were they attached or only mentioned?
• Does your purchase order expressly reject the supplier’s terms, rather than only referring to your own?
• Did the supplier reject your terms again in its order confirmation, and did you respond before delivery?
• Does your company fall within article 6:235 BW (published annual accounts or fifty or more employees), so that you cannot annul clauses for lack of an opportunity to read them?
• In a cross-border purchase of goods, does the CISG apply and has it been excluded?

What should you do if the dispute has already arisen?

Reconstruct the file before you take a position: put the documents in chronological order and mark for each whether it refers to general terms and rejects the other set. The order and wording of the documents usually decide the case, because article 6:225 paragraph 3 BW turns on sequence and wording rather than on what the parties believed.

Then check the two limitations before you rely on the incorporation rules. Does your own organisation fall within article 6:235 BW because of its size or its published accounts? And are both parties established in the Netherlands for the purposes of article 6:247 BW?

Only after that does it make sense to look at the substantive clauses, the remedies under articles 6:74 and 6:265 BW, and whether interim relief in summary proceedings (kort geding) is needed to keep supplies running while the point is resolved.

What can we do for you with a battle of forms?

Bizim corporate and commercial lawyers act for suppliers and buyers before and during a dispute:

• We draft or review your general terms, including the rejection clause and the choice of law and forum.
• We check your quotation, order and confirmation process against articles 6:225 and 6:234 BW.
• We reconstruct the exchange of documents in a dispute and assess which terms apply.
• We assess whether the CISG, Rome I and Brussels I bis change the outcome in a cross-border sale.
• We conduct summary proceedings (kort geding) or the main proceedings, or the arbitration, when the dispute reaches court.

xülasə

• Under article 6:225 paragraph 3 BW the first set of general terms applies, unless the second party expressly rejects it.
• Your terms must be handed over, or made available in a storable form, before or when the contract is concluded (articles 6:233 and 6:234 BW).
• Large companies (article 6:235 BW) and parties not both established in the Netherlands (article 6:247 paragraph 2 BW) cannot rely on those incorporation rules.
• In an international sale of goods the CISG may lead to a last shot or knock-out outcome instead of the Dutch first shot rule.
• Put the reference to your terms, a rejection clause, the choice of law and the forum in your first document and in any signed contract.

Tez-tez soruşulan suallar