Enforceability of general terms and conditions: key basic principles

General

For general terms and conditions to be enforceable against a party, two conditions must be met:

• First, the person against whom one wishes to rely on these general terms and conditions must have actually taken notice of them.
• Second, that person must also have actually accepted those general terms and conditions.

At first glance this seems fairly clear, but practice shows that there is still quite a lot of confusion about this.

1. Availability of the general terms and conditions

It is rather obvious that if one wants to “take notice” of general terms and conditions, one must also be given the opportunity to do so. Case law in practice requires that, for each transaction, the general terms and conditions are provided at least once to the person concerned for this requirement to be satisfied.

The only exception is where there is a demonstrable long-term commercial relationship. In that case, it is sufficient that these general terms and conditions were provided once at the start of the relationship.

In other words, it is not sufficient merely to refer to the general terms and conditions on a website, to state that they will be provided upon first request, that they can be consulted at the registered office, etc.

Moreover, the general terms and conditions must be provided prior to, or at the latest at the time of, conclusion of the contract. Providing them together with a sales confirmation or after payment is therefore, in other words, too late.

There are two exceptions to this, namely where:

• It concerns an invoice between two undertakings.
• The person concerned subsequently expressly accepts the general terms and conditions.

In the relationship vis-à-vis consumers, even greater caution is required, because under Article VI.2 of the Belgian Code of Economic Law (WER/CDE) the seller has an active duty to provide certain information explicitly. In such situations, it is therefore advisable to have the consumer sign a separate document containing additional information.

2. Readability of the general terms and conditions

One may not draft the general terms and conditions in such a way that, for example, they are in a font that is too small and/or in a colour that is too faint. The person concerned must be able to read the general terms and conditions that were provided.

One must also be careful about where the general terms and conditions are placed. For example, case law is divided on whether general terms and conditions may be printed on the reverse side of an order form. The majority of case law accepts this, but there is also case law—amongst others from the Brussels Court of Appeal—that in that case requires an explicit reference on the front side to the general terms and conditions on the back. Preferably in bold and in a frame.

3. Comprehensibility of the general terms and conditions

Of course, the general terms and conditions must also be drafted in such a way that the person concerned can understand them.

This mainly concerns the language of the general terms and conditions. This requirement is assessed concretely, depending on the linguistic area where the goods or services are offered and depending on the target audience. If one therefore focuses on French-speaking customers, a French version of the general terms and conditions should be provided. If one nevertheless provides a Dutch version, there is a risk that those terms will not be enforceable. Only if the customer subsequently explicitly accepts those Dutch terms can one still rely on enforceability. For there to be tacit acceptance of the language, the silence must moreover be circumstances-based.

If one targets a younger market, one may instead assume that customers will likely speak English, at least that they will understand your terms if they were drafted in a reasonably simple manner.

Warning! As regards invoice terms, the original invoice must be drawn up in the language of the legal area where the undertaking has its actual operating seat. For a Flemish undertaking, this is Dutch. However, in order not to unduly hinder the free movement of goods, following an earlier judgment of the Court of Justice in 2016, the Flemish legislator ultimately introduced an amendment to the Dutch Language Decree, expressly providing that in addition to an original invoice in Dutch, an additional invoice version in an official EEA language may also be provided. This relaxation is useful only in an EU-law context. Within Belgium, it is sufficient simply to provide an additional translation in another language.

The sanction for not respecting the language legislation is, since recently, relative nullity. Previously this was absolute nullity, which the court could raise of its own motion, but since June 2018 that certainty has disappeared. Now the opposing party itself must raise the nullity defence, like any other argument. If it is not raised in time, the initiated proceedings will be valid, even if the language of the proceedings is Peruvian.

The acceptance

As for acceptance, there are two possible ways in which general terms and conditions can be accepted:

• First, there is express acceptance.
• Second, there is tacit acceptance (circumstances-based silence).

In this respect it is useful to add acknowledgement and acceptance clauses. One must however be careful not to include these clauses in the general terms and conditions themselves, but for example to place them on the front side of the order form.

In an internet-related context

In an internet-related context, case law accepts that a pop-up window can be used in which the general terms and conditions are set out, with a request to read and accept them.

Where it was previously often held that a mere reference to the terms via a hyperlink, as such, was not sufficient, more recent case law indicates that a hyperlink in a digital contracting context is not necessarily excluded. Thus (among other things in light of case law of the Court of Justice of the European Union of 24 November 2022 and of the Belgian Court of Cassation of 30 March 2023) it is accepted that a hyperlink may suffice, provided that the other party can reasonably take notice of the general terms and conditions before or at the latest at the time of contract conclusion.

In practice, this presupposes at a minimum:

• that the hyperlink is clear and visible at the relevant moment;
• that the terms are effectively accessible before contract conclusion;
• that the other party can save and/or print the terms (durable medium).

Moreover, it remains essential that the party relying on the general terms and conditions can also demonstrate this taking notice and acceptance.

In the relationship with consumers, in principle one cannot rely on such clauses. Article VI.83, 26° WER/CDE provides that any clause that establishes the consumer’s consent in an irrebuttable manner without actual knowledge is unfair. I repeat “in principle”, because practice shows that this clause has little meaning given the wording “in an irrebuttable manner”. One could indeed adjust the clause so as not to conflict with this provision of the Code of Economic Law.

To be on the safe side, however, it is advisable—especially with consumers—to simply have them sign the general terms and conditions. That way there can be no discussion that they took notice of them and accepted them.