Which clauses will be valid in your B2B contracts after 1 December 2020?

We announced it before, but on 1 December 2020 the time has come for the new rules on unfair terms in contracts between businesses to enter into force. They will apply to contracts concluded, renewed or modified after that date. 

What should you bear in mind?

  • A contract between businesses must be clear and understandable.
  • Certain clauses are blacklisted. In all cases, these clauses are prohibited and are null and void. This applies to e.g. unilateral interpretation clauses or irrefutable knowledge and acceptance clauses.
  • If your contracts contain greylisted contract terms, these are presumed to be unfair and prohibited. The greylist includes inter alia the following clauses:
    • clauses that shift the economic risk to another party without any counter-performance;
    • "inappropriate" limitations of liability in the event of non-performance of the contract;
    • clauses excluding liability for gross negligence;
    • clauses allowing a party to make unilateral changes to the contract without a valid reason;
    • duration provisions without a reasonable notice period;
    • clauses of tacit extension or renewal without a reasonable notice period.

However, these clauses are not unfair if you can demonstrate that they do not create a manifest imbalance between the rights and obligations of the parties. Therefore, it may be useful to explain the agreed balance in more detail in your contracts.

  • Other clauses that create a manifest imbalance between the rights and obligations of the parties are also prohibited and are null and void.