Every company works with its own terms and conditions of sale. However, discussions often arise whether these terms and conditions are opposable or not.
Acceptance of the general terms conditions supposes after all that the contracting party has taken cognizance thereof and that the terms and conditions have been accepted.
In the ideal situation, the general terms and conditions would be notified to the recipient at the latest on the moment of entering into a contract and would be signed duly. In practice however, it is not always possible to do so. The question can be asked on which particular elements attention must be paid in order to guarantee the opposability of the general terms and conditions.
1. Entering into a contract online
When a contract is being established online, article 8 §2 on the Law of Electronic Commerce stipulates that if general terms and conditions are notified to the recipient, it must occur in such a manner that it can be saved or displayed by the latter. At least, during the purchase process, reference must be made to the general terms and conditions, whereby a hyperlink to the general terms and conditions is shown. Nonetheless, this technique is not waterproof and can lead to further discussions. Next to the proof of the notification of the general terms and conditions, proof of acceptance of these terms and conditions must be rendered as well. The mere reference by way of a hyperlink can give rise to doubt whether the recipient has in fact taken cognizance of the terms and conditions, or has accepted them.
Concerning the cognizance of the terms and conditions, it is advisable to place the complete text on the website or to obligate the contracting party to download it. In practice the acceptance of the terms and conditions is often established by clicking on a “compliance statement” button, whereby the general terms and conditions appear in a pop-up or need to be passed trough during the conclusion of the transaction. If this would not occur, chances are that the general terms and conditions will not be opposable.
Additionally, it needs to be mentioned that the general conditions must be displayed in every language in which the website can be visited.
2. General terms and conditions on the invoice
In commercial relationships, it is quite common that the terms and conditions are placed on the back of the invoice. As a general principle, it is assumed that if the invoice has not been contested, the general conditions, which are notified by way of the invoice, are applicable. This principle is laid down in article 25 of the Commercial Code, which confirms that an accepted invoice provides proof of the existence of an agreement between parties.
This implies that the complete text of the general terms and conditions is printed on the back of the invoice. Another practice, which comes to light, is the reference on the invoice to the terms and conditions, which can be found on the website. This will generally not suffice to render the terms and conditions opposable.
In order to be able to enforce the terms and conditions, it is required that it is placed on the invoice, in a language comprehensible to the recipient.
3. Choice of Jurisdiction
The choice of jurisdiction is however an important exception to the aforementioned principle. The jurisprudence decides on a constant basis that, if the choice of jurisdiction is only placed on the invoice, and has never been notified to the other party, the latter is not deemed to have accepted the choice of jurisdiction, even if he fails to contest the invoice.
Pursuant to article 23 of the Brussels I Regulation, a valid choice of jurisdiction requires an agreement. Hence, in order to reach an agreement concerning the competent court, it is necessary that the choice of jurisdiction has been accepted on the moment that parties have entered into the contract. This can be realized by placing the terms and conditions on the order and asking the other party to sign it duly. If the choice of jurisdiction is only printed on the back of the invoice, it will not be able to be enforced. After all, the invoice follows the conclusion of the contract, which does not prove that a valid agreement, concerning the competent court, was reached between parties.
It is only possible to deviate from this principle, if a regular and steady commercial relationship can be established between parties. In this case, the court will accept that the choice of jurisdiction is part of the agreement. However, the concept of “a steady and regular commercial relationship” is not defined, hence it is always up to the court to appreciate this on case-by-case basis.
In order to avoid future discussions in this regard, it is recommended that an agreement concerning the competent court is reached on the moment of entering into the contract.
Please note that the aforementioned is only applicable in a business-to-business relationship. When it comes to consumers, a choice of jurisdiction, which differs from common law, will generally be without effect.
