Rules concerning the content of contracts

Differences in the content of contracts between entrepreneurs and consumers.

Terms and conditions

In practice, part of the content of the contract is often specified in the terms and conditions, i.e. outside the body of the contract, in a special pre-prepared document. In order for the terms and conditions to become part of the contract, they must be attached to the offer or be known to the parties.

If a consumer contract is being concluded, the consumer must also have the possibility to acquaint themselves with the terms and conditions before concluding the contract. This must be a genuine possibility. The time provided to study the terms and conditions must therefore reflect their scope and complexity. If this condition is not met, the terms and conditions will not become part of the contract.

If a contract is concluded by two entrepreneurs and if the terms and conditions are drawn up by professional or interest organisations, they may be included in the contract simply by reference to them.

Prohibition of abusive arrangements in a contract

Consumer contracts must not contain abusive arrangements.

Arrangements are considered abusive if they create, contrary to the requirement of proportionality, a significant imbalance in the rights or obligations of the parties to the detriment of the consumer. Such arrangements are invalid, whether contained in the body of the contract itself or in the terms and conditions, and irrespective of whether the arrangement was individually negotiated. In addition to this general clause, the Civil Code determines specific clauses that a consumer contract may not contain. For such determined clauses, it is no longer necessary to examine whether they are also abusive under the general clause.

Although this regulation does not apply to relations between entrepreneurs, certain milder rules do apply.

Entrepreneurs are generally prohibited from abusing their economic position and professional qualities to create or exploit the dependence of the weaker party and to achieve a clear and unjustified imbalance in the mutual rights and obligations of the parties. The weaker party may be another entrepreneur.

Even in relations between entrepreneurs, the content control of terms and conditions takes place according to the general regulation: a provision that the other party could not reasonably have expected is ineffective if such party did not expressly accept it.

A similar rule applies to so-called contracts of adhesion, i.e. contracts whose basic conditions were determined by one of the contracting parties or according to its instructions, without the weaker party having a real opportunity to influence the content of these basic conditions. In addition, clauses in contracts of adhesion that are particularly disadvantageous for the weaker party without a reasonable reason are invalid. Entrepreneurs may exclude these rules - yet this does not apply if the other party proves that a clause outside the actual text of the contract and proposed by the other party is grossly contrary to business practices and the principle of fair trading.

Interpretation of the contract in favour of the consumer

The rule for all consumer contracts is that if the content of the contract can be interpreted in different ways, the most favourable interpretation for the consumer will apply. This is the elaboration of the general rule that, in case of doubt, an interpretation which is to the detriment of the party that first used the term in the contract prevails. This is because consumer contracts are usually prepared by an entrepreneur.

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