If You And Your Contracting Party Have Conflicting Terms And Conditions…
 

Give a reaction / contract law, corporate law / Door Jan Roodhooft

 

If you do business with another company as a company, it happens all too often that you both use general terms and conditions (the so-called 'fine print'). Which conditions apply in that case?
 

New law
 

The new contract law will come into force on 1 January next. This contains a regulation in case the general terms and conditions of contracting parties (e.g. customer and supplier, contractor and subcontractor, etc.) are contradictory.
 

More specifically, the law says that if there are negotiated terms, they take precedence over the terms of the parties. Just think of conditions that are actually in the contract, on the order form or on the quotation. 
 

Or else?
 

The new law further says that if the offer and the acceptance refer to different terms and conditions, the contract is nevertheless formed. Both general terms and conditions then form part of the contract, with the exception of the incompatible stipulations.
 

However, the contract shall not be formed if either party expressly indicates in advance (or without undue delay after receipt of acceptance) that it does not wish to be bound by such contract, and not by means of terms and conditions.
 

Past contracts
 

The new law does not apply to contracts concluded before 1 January 2023. Nevertheless, the provisions of the new law regarding the conflict of general terms and conditions could also have an 'inspiring' effect for those contracts.
 

Until now, courts have ruled differently in the event of a conflict of general terms and conditions. For example, it was sometimes ruled that neither of the two general terms and conditions play a role because people simply did not agree on that. , let the terms and conditions that were last communicated take precedence or let the terms and conditions of the customer apply.