Parties can do business together for years without having to think about exactly what they have agreed to with each other. Concerning the delivery of a product, an agreement on the price and delivery time can often be enough as long as both parties fulfil their obligations to deliver and pay the invoice.

Often the only tangible proof of these agreements is the invoice that the contractor has sent to the client. At the bottom of the invoice, general terms and conditions are declared applicable and it is settled Dutch case law that after years of doing business, the general terms and conditions can also arise through tacit acceptance of them.

The situation becomes somewhat more complicated if two parties are both contractor and client in relation to each other. For example, two companies that trade in the same product segment can sometimes act as a buyer and sometimes as a seller. After each delivery, the selling party sends the other party an invoice with its own set of conditions declared applicable. This can proceed without a problem for years, until a dispute arises. Which set of general terms and conditions is applicable?

It seems acceptable to assume that the general terms and conditions of the selling party apply, i.e. the party who sent an invoice with reference to general terms and conditions regarding the delivery resulting in the conflict. Unfortunately it is not that simple in practice. First of all, a conflict can arise that does not clearly relate to one specific delivery. For example, parties can disagree on the way in which claims are sett of against each other, while both sets of general terms and conditions have their own relevant provisions. There is also a lack of clarity when a party on an invoice declares its terms and conditions not only applicable to its deliveries, but to all its agreements and legal relationships. Many more complications are conceivable.

A general answer to the question which set of general conditions applies in these situations is not possible. That always depends on the concrete circumstances of the case. In order to avoid unnecessarily complicated conflicts, it is therefore very important to make clear agreements. Especially in the case of dealing with regular trading partners, we advise to make clear agreements The reference to general terms and conditions on an invoice is simply not enough.

Richard Latten