Quotation, order confirmation and general terms and conditions

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If you  If you want to build or renovate a house or existing house, you will probably have to deal with a number of parties, including a contractor, (possibly) an architect and/or a construction consultant.

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Choice of contractor and/or architect

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To make a good choice for a contractor or architect, you can request quotes from various companies. Please note that in principle it is not allowed to pass on information from one company to another company in order to negotiate the most favorable offer.

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You then act unlawfully towards the party whose information you pass on to another. The contractor or architect who is the victim of this can hold you liable for the damage suffered by him.

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If you have ultimately chosen a specific contractor or architect, they will send you a written order confirmation with the request to sign it. Carefully check in this order confirmation whether the following points are described:

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• Is there a clear description of the work?

• Is it clear which materials and colors will be used?

• Is there a drawing showing how everything will look like?

• is the price of the different parts clearly indicated?

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Any verbal agreements are also valid, but difficult to prove if there is a disagreement about this later on. Make sure that all agreements are in writing.

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General terms and conditions for a construction contract

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When you have finally decided on a specific contractor, you will be presented with a contract or order confirmation in which the agreements made are recorded. Professional parties usually make use of so-called general terms and conditions.

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These are standard terms that are declared applicable to the contract and that the contractor uses in all his contracts.

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The contractor uses these general provisions because in this way he does not have to repeat certain general agreements with each contract. For example, consider things like:

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• liability

• additional work

• delivery

• guarantees

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When signing contracts, check carefully whether and, if so, which general terms and conditions apply to the contract. Not paying attention to these so-called 'small print' can have major financial consequences later on.

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When are you bound by general terms and conditions?

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To protect you as a consumer against abuse of general terms and conditions, a number of conditions must be met before you are bound by these conditions. You are only bound by these terms and conditions if:

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• these general terms and conditions have been declared applicable in the contract. This means that a reference has been made to these general terms and conditions in the contract that you sign. So keep this in mind when signing a contract.

• in addition, you must have been given a reasonable opportunity to read these terms and conditions before signing the contract. For example, the contractor can send you these general terms and conditions in advance.

• finally, these terms and conditions must be reasonable. Lawyers then say that the general terms and conditions should not be unreasonably onerous. This is a tricky condition. Ultimately, a judge will determine what is or is not reasonable. In any case, the bottom line is that a contractor or other consultant may not include matters that are particularly unreasonable or indecent. In that situation you are therefore not bound by these general terms and conditions.

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In practice, the first condition is usually met. The agreement simply refers to these terms and conditions. But if you have a conflict with a contractor about these terms and conditions, you may be able to rely on the second or third condition.

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You are therefore only bound by general terms and conditions if you have been able to take note of these terms and conditions. The general terms and conditions must have been handed to you, as it were. You should not take this too literally, because that can also have happened by, for example, sending by post.

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If you have never seen the general terms and conditions before signing, and have therefore never been able to take cognizance of them, you are not bound by these terms and conditions.

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You can then destroy these general terms and conditions. Destruction does not happen by itself, you have to do something for it. You can destroy the general terms and conditions by giving the other contracting party a  short letter  writing in which you indicate that you are destroying the general terms and conditions because you were never able to take cognizance of them.

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Another option not to be bound by general terms and conditions is to rely on the fact that these terms and conditions are very unreasonable. One speaks of unreasonably onerous general terms and conditions. The law describes a number of cases of conditions that are considered unreasonable by a judge. For instance:

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• if the general terms and conditions state that you cannot cancel the contract

• if a statutory limitation period is shortened to less than one year in the general terms and conditions

• if the agreed price may be increased within 3 months after signing the agreement without you being able to dissolve the agreement.

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If you are not sure whether a certain condition is reasonable, it is wise to seek legal advice. Keep in mind that general terms and conditions developed by a trade association and used by almost the entire industry have generally been tested as reasonable.

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With general terms and conditions drawn up by an individual contractor, you could have a better chance of invoking the unreasonableness of these terms and conditions.

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