General terms and conditions: where lies the key to enforceability? On acceptance, enforceability and Peppol.

Many collaborations today start without a detailed contract. A quote is accepted, a click in a webshop confirms the deal, a short email is sent, and you, as an entrepreneur, get to work. Efficient and fast… until a dispute arises. That’s when the general terms and conditions come into play. But are they actually enforceable? And what changes with digital invoicing and Peppol? Lawyers Stefanie Claeys and Larissa Blondeel outline the framework for general terms and conditions, both in a B2B and B2C context.

General terms and conditions: not an automatic safety net

General terms and conditions form the backbone of a professional collaboration. But they do not apply automatically: Book 5 of the Civil Code states that they only apply if the other party had the opportunity to take notice of them before the agreement was concluded and accepted them, explicitly or implicitly.

“It may seem obvious, but this is where things often go wrong in practice,” says Stefanie Claeys. “Many companies refer to their general terms and conditions without considering whether they are actually part of the agreement from a legal perspective.”

It is not enough for general terms and conditions to simply exist somewhere, for example on a website or at the bottom of a brochure. They are part of a dynamic set of documents: quotes, order forms, purchase orders or invoice terms all help determine what applies. What remains decisive is whether those general terms and conditions were communicated in time and accepted.

General terms and conditions are now part of a dynamic set of documents. What applies depends on what was communicated in time and accepted.

Order form versus invoice: where things often go wrong

This tension becomes clear in practice. For example: a customer orders a cabinet in a furniture store and signs an order form including price, delivery time and specifications of the type of wood. Those agreements are fixed. General terms and conditions that only appear later on the invoice cannot simply deviate from them.

For entrepreneurs, the distinction between an order form and an invoice is therefore crucial:

• The order form is often the first real contractual document between parties, and therefore a key moment to properly communicate your general terms and conditions, especially in a B2C context. For example, if you sell a product in-store, it is best to include your general terms and conditions on the back of the order form.
• The invoice, on the other hand, serves a different function. It is not only fiscally required but also plays an evidentiary role between businesses. However, it often comes after the agreement has already been concluded.

And that is precisely where the risk lies. “Many disputes arise because companies only invoke their terms on the invoice,” says Larissa Blondeel. “By that time, the contractual agreements are usually already fixed.” That is why the first document between parties is crucial: work with a clear order form, provide a standard purchase order where possible, and explicitly refer to your general terms and conditions.

If you want to rely on your general terms and conditions, communicate them in time—preferably already at the stage of the order form.

Four practical checks for your general terms and conditions

General terms and conditions only work if your customer had the opportunity to review them in advance and accepted them.
This may seem obvious, but in practice it often goes wrong. Here are four key points to keep in mind:

1. Where are your terms and conditions located? Are they only on the back of your invoice? In a B2B situation, especially in a long-term relationship, this may still be sufficient. With consumers, in principle, it is not.
    
2. In which language are they drafted? Your terms must be understandable. Another language is possible, but you must be able to demonstrate that your customer sufficiently understands it. The language of the agreement also plays a role.
    
3. Are the terms actually communicated or merely referenced? A reference is not enough. If you refer on an order form to terms that are only available online or “upon request,” this is insufficient. Case law is strict: your customer must be able to read them beforehand.
    
4. Do you refer via a clickable hyperlink? The Court of Cassation confirmed in 2020 that such a link can be valid in a B2B context.In a B2C context, this is more sensitive: the consumer must be able to review the terms in advance; a link on an in-store order form is not sufficient. Also consider proof: the link must work, and you must be able to demonstrate which version of your terms was online at that time.

The rules regarding general terms and conditions are the same, but the bar is set differently: in B2B there is more flexibility, while in B2C the assessment is stricter.

Peppol and general terms and conditions: when is an invoice accepted?

With Peppol, not only the transmission of invoices changes, but also the legal landscape. Receipt becomes technically demonstrable and therefore, in principle, no longer disputable. What does this mean for acceptance and disputes, and what role do your general terms and conditions play?

“In a digital flow such as Peppol, the discussion shifts,” says Larissa Blondeel. “Not so much at the moment of sending, but in what happens afterwards.”

This plays out in two ways:

• Tacit acceptance arises more quickly. Many companies automatically process Peppol invoices. Depending on the context, this can be interpreted as tacit acceptance, especially if nothing else has been contractually agreed.
   
• Timely protest becomes crucial. Because receipt is established, the focus shifts more quickly to whether a response was made in time. In practice, counterparties increasingly rely on this.

Clear general terms and conditions make the difference here. Provide clear agreements on protest deadlines and the method of dispute, and clarify that mere receipt or processing via Peppol does not constitute automatic acceptance.

NOMA, your legal anchor point

General terms and conditions are not a formality—they are a smart lever to avoid disputes. Those who use them correctly and in a timely manner stand stronger. Especially with Peppol, where receipt is established and acceptance comes into play more quickly, a well-thought-out approach pays off.

Want to be sure your general terms and conditions are truly enforceable and aligned with your practice?
The lawyers at NOMA specialize in contract law and are happy to assist you in drafting and fine-tuning them.

In June, NOMA is organizing a live seminar on general terms and conditions, tailored to entrepreneurs.
Leave your details to stay informed.