General terms and conditions and the consumer: the importance of prior consent

General terms and conditions have become indispensable in commercial and legal transactions. They offer businesses the advantage of being able to conclude a large number of agreements in a short period of time without having to negotiate the contractual terms individually each time. 

However, the use of general terms and conditions is being regulated ever more strictly. Especially in the relationship between a business and a consumer, caution is required if one wishes to continue using them without problems. In particular, the pre-contractual duty to provide information that rests on the business vis-à-vis the consumer and the doctrine on so-called unfair terms are of enormous importance within this framework. 

In this blog post, we outline an overview of the requirements that must be met for your general terms and conditions to be enforceable against your counterparty, more specifically when that counterparty is a consumer. 

Pre-contractual duty to provide information to the consumer

A business that wishes to rely on the application of its general terms and conditions must communicate those terms and conditions to the consumer in a clear and understandable manner no later than at the time the contract is concluded. This pre-contractual duty to provide information goes beyond the general requirements of awareness and acceptance, which are discussed further below.

Through the pre-contractual information obligation, the aim is to ensure that the consumer is sufficiently informed about the contractual arrangements governing the agreement, so that they can give informed consent. 

It is important to emphasize that this concerns an active duty to provide information. Businesses must therefore provide their general terms and conditions to the consumer on their own initiative, even if the consumer does not ask for them. 

Material clause

However, mere proof that the consumer was informed, prior to the conclusion of the contract, of the applicability of the general terms and conditions is not sufficient when those general terms and conditions contain so-called ‘onerous clauses’. 

The law does not provide a clear-cut definition of an ‘onerous clause’. It is generally accepted that such a clause exists where the consumer, in light of what is customary in the sector concerned for similar contracts and considering the individual negotiations between the parties, could not reasonably have been expected to anticipate it. 

In that case, the business must demonstrate that it expressly and specifically drew the consumer’s attention to the existence of these clauses. This may include, for example, an explicit statement on the front of the document in question or typographical emphasis. This protects the consumer against the far-reaching adverse consequences of such onerous clauses and prevents the business from ‘hiding’ them among the other fine print.

If the business fails to comply with its pre-contractual duty to provide information, the consumer is not bound by the general terms and conditions concerned. 

General principle of awareness and acceptance

In addition to the pre-contractual information obligation, the business’s general terms and conditions are enforceable against the contracting consumer only if, before entering into the agreement, the consumer has taken note of those terms and conditions or has reasonably been able to take note of them, and has moreover accepted them. The requirements of awareness and acceptance are expressly enshrined in law as from 1 January 2023, more specifically in Article 5.23 of the new Civil Code.

Awareness 

The first requirement for enforceability concerns awareness of the general terms and conditions, or the reasonable possibility of becoming aware of them. 

In this regard, account must be taken of the principles of availability, readability and comprehensibility.

Naturally, the general terms and conditions must first and foremost be made available to the consumer so that they can take note of them. This must be done no later than at the time the contract is concluded. If the general terms and conditions are only provided to the consumer afterwards, the consumer is normally not bound by them. Except where the consumer subsequently accepts them.

Furthermore, the general terms and conditions must be readable and understandable for the consumer. For example, it is not advisable to draft the general terms and conditions in a font size that is too small, in a color that is too unclear, or in a foreign language. After all, the consumer must be put in a position to read and understand the general terms and conditions received, so that they can take note of them. 

Whether or not the consumer actually takes note of the content of the general terms and conditions by effectively reading them nevertheless always remains their own responsibility.

Acceptance

The general terms and conditions must not only be known to the consumer, they must also be accepted in order to form part of the agreement in question. 

When the consumer expressly agrees to the application of the company’s general terms and conditions, in principle no questions will arise. After all, the parties have knowingly and willingly agreed to apply certain contractual clauses – even if they are less favorable to one of the parties. 

In addition, the general terms and conditions may also be accepted implicitly. This is the case where, in view of the specific circumstances, the informed silence of the contracting party can have no meaning other than acceptance of the general terms and conditions in question. 

Contractual qualification of taking note and/or acceptance

The business that claims its general terms and conditions form part of the contract and therefore bind the consumer must provide proof that they were made available in time and accepted.

Providing such proof is not so straightforward. That is why businesses sometimes include specific clauses relating to these requirements in their general terms and conditions. 

A notice clause implies that the other party acknowledges having taken note of the general terms and conditions in question. An acceptance clause, in turn, similarly creates a legal fiction of acceptance by referring to the express acceptance by the contracting party, or by designating certain conduct of the other party as an expression of such acceptance (e.g. the use of an access card, which immediately implies agreement with all contractual terms). In practice, these provisions are often combined into a single clause. 

In principle, no objections are raised against the validity of such clauses. However, it must be borne in mind that if these provisions form part of the general terms and conditions, the same proof is required for them as for the enforceability of the general terms and conditions themselves, namely prior notice and acceptance. 

It is therefore preferable not to include these provisions in the general terms and conditions, but instead to include them explicitly in the agreement itself or in an order form. 

It is important to emphasize that the validity of the notice and/or acceptance clause in agreements concluded between a business and a consumer will also be assessed in light of the doctrine of unfair terms. 

Within this framework, it is useful to explain two examples in more detail:

• As already mentioned above, the business that wishes to rely on its general terms and conditions must prove that the other party had prior knowledge of and accepted them. However, if the knowledge and/or acceptance clause reverses this burden of proof and imposes it on the consumer, the clause will be considered unfair, resulting in its nullity. 
• The same applies to the clause that irrefutably establishes the consumer’s consent to provisions of which they could not actually have taken cognizance before the conclusion of the agreement.

Warning: compliance with the pre-contractual duty to provide information does not constitute a defence to exclude the unfair nature of a contractual clause. 

Conclusion

Given the increasing use of adhesion or standard-form agreements, consumers are confronted almost daily with general terms and conditions that have not been individually negotiated. 

To ensure that consumers are sufficiently protected against the less favourable position in which general terms and conditions may place them, the legislator introduced the above protection mechanisms. 

The sanction in the event of non-compliance is clear. If the business fails to comply with the aforementioned obligations in a timely manner, the consumer will not be bound by the general terms and conditions in question. 

We therefore advise always having the consumer sign the general terms and conditions. In that way, no dispute can arise as to whether the business provided its general terms and conditions to the consumer before the contract was concluded, whether the consumer was subsequently able to take note of them, and whether they also accepted them. 

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