The opposability of general terms and conditions

Acknowledgment of the general terms and conditions

A first condition is that the contracting party must be able to acknowledge the general terms and conditions before entering into the agreement. It's not necessary for the other party to actually acknowledge them; the reasonable opportunity to do so is sufficient. As a company, you must ensure that the general terms and conditions are available to everyone with whom you enter into an agreement, and that they are written in a comprehensible and readable language. This means you have to take into account the font type, font size, sentence structure, etc.

It is not enough to merely refer to the general terms and conditions on your website or to announce that the general terms and conditions will be provided upon first request. Even if the terms and conditions are included on the back of a contract, it's preferable to reference them on the front of the same document. Particularly in a business-to-consumer (B2C) context, it's important to be cautious, as the law requires companies to actively provide information and be transparent.

Case law generally requires that the general terms and conditions be provided in full at least once per transaction to the involved counterparty. In the case of a long-term commercial relationship, it's sufficient to provide the general terms and conditions once at the beginning of the relationship to the trading partner.

Given that acknowledgment must occur before the contract is concluded, it's preferable to include the general terms and conditions with offers or purchase orders, rather than for the first time on the invoice. However, this needs to be nuanced for a B2B context, for which the new Civil Code introduces a new rule regarding evidence. An invoice that is not disputed within a reasonable period is considered evidence of acknowledgment and acceptance of the invoice terms.

The assessment of whether a party had the opportunity to acknowledge the general terms and conditions often involves a factual matter. The Supreme Court recently ruled that general terms and conditions accessible via a hyperlink referring to the company's website meet the availability requirement in a B2B context, provided they are accessible, downloadable, and printable in advance.

Acceptance of the general terms and conditions

Additionally, the contracting party must have effectively accepted the terms and conditions. This can be explicit, through signing a declaration or the general terms and conditions themselves, or implicit (for example, by making a deposit payment).

Many companies use a clause indicating that the contracting party has had the opportunity to acknowledge and accept the general terms and conditions. However, if this provision is only included in the general terms and conditions and not in the contract itself, it may be considered an 'unfair term', meaning the general terms and conditions are not binding.

Conclusion

The opposability of general terms and conditions always requires acknowledgment and acceptance (or the reasonable opportunity for acknowledgment and acceptance). It's important for the terms to be written in understandable and readable language. In a B2C context, it's highly recommended to include the general terms and conditions with the offer and ask the customer to sign them.