General terms and conditions are standard rules that a company uses frequently and in many contracts. They are not the main terms such as the price, but about standard rules that apply, such as payment, delivery, and complaints.
General terms and conditions
Application of general terms and conditions
The company may choose whether or not to use general terms and conditions. The company writes these rules (the user), and the consumer is the one who accepts them (the other party). These terms often contain the small print, such as rules about payment, warranty, delivery, service, or repairs. They are not mandatory information. These rules do not apply to employment contracts or collective labor agreements (CLA’s).
If a company uses general terms and conditions:
- The company must inform the consumer, before the purchase or service is provided, that general terms and conditions apply.
- The company must ensure that the consumer can read the general terms and conditions before the purchase or service and can store them.
- The company must ensure that the general terms and conditions are clear, reasonable, and not misleading.
- The company must update the general terms and conditions in a timely manner when changes are necessary. If the terms and conditions change, the company must inform the consumer.
Reasonable general terms and conditions
A company’s general terms and conditions are considered reasonable if the following applies:
- The terms and conditions comply with the law.
- The company does not misuse its stronger position as a business.
- The terms and conditions do not contain unreasonable or unfair provisions.
Making general terms and conditions available
If a company uses general terms and conditions, the company must make them available to the consumer in advance and free of charge.
The company must provide the general terms and conditions before or at the time of the purchase or service provision.
A company may make the general terms and conditions available in different ways, for example:
- By providing them directly during the sales conversation;
- By sending them by post or by email;
- By making them available on the company’s website as a PDF;
- By printing them on the back of the receipt;
- By clearly indicating where they can be consulted, such as at the business premises, the Chamber of Commerce and Industry Aruba, or the court.
If a company does not conclude the contract digitally, for example in a physical store, but only makes the general terms and conditions available digitally (for example on its website), the company must obtain the consumer’s explicit consent to the general terms and conditions.
If a company provides the general terms and conditions only after the purchase or service has taken place, the general terms and conditions may be declared invalid.
Do not hide important information in the general terms and conditions
When a consumer enters into an agreement with a company, the company must not hide important information in the general terms and conditions.
The general terms and conditions must not create misleading or confusing effects for the consumer.
In particular:
- A company must not hide its role as an intermediary.
It must not become clear only from the general terms and conditions that the company is acting as an intermediary. - A company must not hide or unexpectedly limit the authority of its representatives.
Representatives (such as sales staff) may not make promises to the consumer if the general terms and conditions exclude or restrict those promises.
Blacklist of provisions in the general terms and conditions
The blacklist is a statutory list of provisions in general terms and conditions that are always considered unreasonably burdensome for consumers.
- A company may not use provisions that appear on the blacklist.
- These provisions or clauses are always prohibited by law and a consumer may always declare them invalid, regardless of the specific circumstances of the case.
Blacklist provisions Examples of encountered blacklist provisions:
| The consumer may not claim what the company has promised. | “You cannot derive any rights from product descriptions or promises on our website.” |
| The consumer may not end the contract, even if there are problems or defects with the delivery. | “You cannot cancel this agreement, even in the case of defects in the delivery.” |
| The consumer must always pay, even if the product or service has not yet been delivered. | “You are always obliged to pay, even if we have not delivered yet.” |
| The company decides on complaints itself and makes a binding decision for the consumer. | “All complaints are assessed exclusively by our management and are binding.” |
| The company may transfer the contract to another company without informing the consumer. | “We may transfer this agreement to a third party without informing you.” |
| After transfer to a debt collection agency, the consumer may no longer dispute the payment obligation. | “After transfer to a debt collection agency, you can no longer contest your payment obligation.” |
| The consumer loses all rights if a complaint is not submitted within six months. | “Complaints must be submitted within six months after delivery; after that, all rights lapse.” |
| The consumer loses all rights if a complaint is not submitted within six months. | “Complaints must be submitted within six months after delivery; after that, all rights lapse.” |
| The consumer is always responsible for damage to third parties during installation. | “You are liable for damage to third parties arising from the installation of our products.” |
| The company may increase the price within three months, and the consumer may not terminate the contract. | “We reserve the right to adjust the price within three months. You are not entitled to terminate the agreement.” |
| A subscription is automatically renewed for a long period unless the consumer cancels far in advance. | “Your subscription is automatically renewed for two years unless you cancel three months in advance.” |
| The company may continue to send important information to an old address. | “We may send important information to your old address, even if you have reported a change of address.” |
| The consumer must choose a place of residence outside Aruba. | “You choose domicile in the Netherlands, regardless of your actual place of residence in Aruba.” |
| All disputes must be resolved only by a mediator chosen by the company. | “All disputes will be resolved exclusively by a mediator chosen by us.” |
Grey list of provisions in the general terms and conditions
The grey list is a statutory list of provisions in general terms and conditions that are presumed to be unreasonably burdensome for consumers. This means that the law assumes these provisions are unreasonable, unless the company can prove otherwise in a specific case. If a company uses a provision from the grey list, the company must provide counter‑evidence to show that the provision is not unreasonably burdensome for the consumer in that particular situation.
Grey list provisions: Examples of encountered grey list provisions:
| The company sets an unusually long or unclear response period for responding to the consumer. |
“We will respond to your cancellation within 90 days, provided it is correctly and fully formulated.” |
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The company substantially limits its own obligations to the detriment of the consumer.
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“We deliver the product, but are not responsible for its quality or functionality.” |
| The company reserves the right to deliver a performance that materially deviates from what was promised. | “We reserve the right to deliver a comparable product if the ordered product is out of stock.” |
| The company may withdraw from the agreement without clear or valid justification. | “We may terminate this agreement at any time and without (valid) cause.” |
| The company sets an unusually long or vague period for performance. | “We will deliver your order within a reasonable period.” |
| The company or a third party is fully or partly exempted from the statutory obligation to pay compensation. | “We are not liable for any damage, whether direct or indirect, however caused.” |
| The consumer is not allowed to set off claims, while the company has extensive rights of set‑off. | “You are not permitted to set off any claims against us, even if we are in default.” |
| A sanction on the consumer’s conduct leads to the loss of rights. | “If you do not submit a complaint within five days, all your rights and claims will lapse.” |
| The consumer must pay a sum of money upon termination, even without any breach. |
“Upon termination of the contract, you are required to pay a fee of 250 florins.” |
| The consumer is obliged to enter into an additional agreement. | “When registering for our service, you are also required to enter into a one-year maintenance contract.” |
| The duration for tacit renewal of the contract exceeds one year. | “Your maintenance contract will be automatically renewed for two years.” |
| The notice period for the consumer is longer than three months and longer than the company’s notice period. |
“You must observe a notice period of at least six months; we may terminate the agreement at any time with one month’s notice” |
| The company requires a stricter form than written notice for the consumer’s declaration. | “Termination is only valid by notarial deed.” |
| The company uses an irrevocable power of attorney that remains valid after death or legal incapacity. | “By signing this document, you grant us an irrevocable power of attorney, which remains valid even after your death” |
Invalidation of general terms and conditions
Under the law, a clause is voidable if it is unreasonably burdensome or if the consumer did not have a reasonable opportunity to read the terms and conditions.
Such a clause only loses its legal effect once it has actually been invalidated.
Invalidation may take place without court involvement or through a court ruling.
