CLEVER GENERAL SALES CONDITIONS TO ESCAPE GENERALISATION

You may already have experienced it:you want to apply yourgeneral sales terms and conditionsand the buyer imposes his ownpurchase terms and conditions on you. Which ones prevail? And which provisions are essential to avoid common law generalisation?  

Which general terms and conditions take precedence?

The following outcomes may occur when there is room for interpretation.  

1. The first move

It could be argued that the general terms and conditions of the party who made the first move (the seller) take precedence, provided they were not explicitly rejected by the buyer.  

2. Who laughs last

The opposite reasoning is also possible, where the last word is decisive. In that case, the conditions that have been handed over last do apply.  

3. Swiss type neutrality

When both parties have general terms and conditions at their disposal, these could neutralise each other, which entails application of common law.  

4. The soft approach

In this case, the terms and conditions of purchase always apply, regardless of whether the buyer first came forward with those terms and conditions.  

Which clauses are decisive?

The most important clauses, that can make your general terms and conditions work in an effective way, are listed below. Naturally, they need to be checked, adapted or developed according to your trade.  

1. Prevailing general terms and conditions

It seems useful to include a clause in your general terms and conditions stating that, in the event of conflicting general terms and conditions,your general terms and conditions take precedence, and that the buyer’s general terms and conditions don’t apply unless you have expressly accepted them in writing and in advance.  

Example –Precedence: These General Terms and Conditions take precedence over conflicting or different terms and conditions of the buyer or purchaser. Differing stipulations and/or additional conditions shall only be binding on us if they are expressly accepted by us in writing.

2. Belgian legislation prevails

Choose the legislation that suits you best. It is advisable to include in your general terms and conditions thatBelgian law appliesto your transactions.However, when your buyers are locatedoutside the European Union, it may be advisable to choose the buyer’s legislation.  It may simplify the execution of possible judgment.  

3. Specific court deals with the dispute

Choosethe tribunal that suits you best. It might save your attorney traveling across the country or lengthy explanation to several local colleagues about your trade and the specific claims at stake.  

Example –Jurisdiction and applicable law: In the event of a dispute, the courts of [Brussels] shallhave sole jurisdiction. Only Belgian law shall apply.

4. Interest and indemnity clause

In order to be able to claim the interest and costs, you can specify them in your general terms and conditions. It avoids or at least limits discussion afterwards. They should bedetermined(like an amount) ordeterminable(like a percentage). In theory, you could impose high interest and costs, but in court, a judge will decide what is fair, and excessive interest and costs may even be cancelled.   Note: thelawon late payments onB2Btransactions does not specify the compensation amount of that may be charged, but states that reasonable compensation may be claimed. Therefore, if you do not specify your own interest and costs, you will fall back on this legislation (for B2B), leaving room for interpretation but also discussion.  

5. Don’t force yourself to send noticesfor compensation

Save yourself the trouble of proving that you have sent a notice of default. State that a notice of default isunnecessaryto charge fees and interest in the event of late payment.  

Example –Payments: Any invoice unpaid by due date will automatically and without noticebe subject to  payment of  interest, with a minimum of 12 % onan annual basis,from the date of the invoice. Furthermore, fixedcompensation will be automatically applied without notice. This indemnity is setat 12 % of the amount due and is subject to a minimum amount of € 100,00. Any invoice unpaid at the due date renders, automatically and without notice, all unpaid invoices, even if not yet due, immediately due.

6. Dispute validation period

It is best to set a limit to theperiod within which a dispute can be made. For B2B cases 15 days seems appropriate. It is also best to include in your general terms and conditions that any dispute must be submitted by registered letter.  

Example –Disputes: In order to be valid, disputes or complaints must be submitted by registered letter within fifteen days of the invoice date.

7. Retention of title

The delivered goods become the property of the purchaseronly after they have been paidin full.  

Example –Retention of title: The seller will remain the owner of the goods sold until all claims are settled in full. As long as this is not the case, the buyer will not be able to dispose of the goods, pawn them, lend them or dispose of them in any way. Nevertheless, the buyer will bear all the risks linked to the loss or deterioration of the goods, whatever the cause. Until the price has been paid in full, the buyer agrees to keep the goods available tothe seller in perfect condition. In the event of imminent bankruptcy of the buyer, foreclosure or any depreciation of the property, the buyer will be required to informthe seller in writing within 24 hours.

And perhaps the most important tips:

• Make sure that you canprove that the buyer accepted your terms & conditions. This is best done as soon as the client signs the order, by specifying next to his signature that such signature entails agreement with your sales terms and conditions.
• Make the effort toread the buyer’s general purchase terms and conditions(if he has any)!

  If you have any questions about your general terms and conditions and/or the above clauses, please do not hesitate tocontactus ( or +32 16 74 52 00 or sales@tcm.be). Sources:

• https://graydon.be/blog/wat-als-verkoopsvoorwaarden-botsen?fbclid=IwAR3ApN0_IQyFgX-NoNqJbsAa8yvb0aQzbMW-jOZDERVbwEpOp7xOSTKe_0c
• https://www.lexalert.be/nl/article/waarom-een-beding-van-eigendomsvoorbehoud-voorzien-uw-algemene-voorwaarden

 Published 15 June 2020

CLEVER GENERAL SALES CONDITIONS TO ESCAPE GENERALISATION

You may already have experienced it:you want to apply yourgeneral sales terms and conditionsand the buyer imposes his ownpurchase terms and conditions on you. Which ones prevail? And which provisions are essential to avoid common law generalisation?  

Which general terms and conditions take precedence?

The following outcomes may occur when there is room for interpretation.  

1. The first move

It could be argued that the general terms and conditions of the party who made the first move (the seller) take precedence, provided they were not explicitly rejected by the buyer.  

2. Who laughs last

The opposite reasoning is also possible, where the last word is decisive. In that case, the conditions that have been handed over last do apply.  

3. Swiss type neutrality

When both parties have general terms and conditions at their disposal, these could neutralise each other, which entails application of common law.  

4. The soft approach

In this case, the terms and conditions of purchase always apply, regardless of whether the buyer first came forward with those terms and conditions.  

Which clauses are decisive?

The most important clauses, that can make your general terms and conditions work in an effective way, are listed below. Naturally, they need to be checked, adapted or developed according to your trade.  

1. Prevailing general terms and conditions

It seems useful to include a clause in your general terms and conditions stating that, in the event of conflicting general terms and conditions,your general terms and conditions take precedence, and that the buyer’s general terms and conditions don’t apply unless you have expressly accepted them in writing and in advance.  

Example –Precedence: These General Terms and Conditions take precedence over conflicting or different terms and conditions of the buyer or purchaser. Differing stipulations and/or additional conditions shall only be binding on us if they are expressly accepted by us in writing.

2. Belgian legislation prevails

Choose the legislation that suits you best. It is advisable to include in your general terms and conditions thatBelgian law appliesto your transactions.However, when your buyers are locatedoutside the European Union, it may be advisable to choose the buyer’s legislation.  It may simplify the execution of possible judgment.  

3. Specific court deals with the dispute

Choosethe tribunal that suits you best. It might save your attorney traveling across the country or lengthy explanation to several local colleagues about your trade and the specific claims at stake.  

Example –Jurisdiction and applicable law: In the event of a dispute, the courts of [Brussels] shallhave sole jurisdiction. Only Belgian law shall apply.

4. Interest and indemnity clause

In order to be able to claim the interest and costs, you can specify them in your general terms and conditions. It avoids or at least limits discussion afterwards. They should bedetermined(like an amount) ordeterminable(like a percentage). In theory, you could impose high interest and costs, but in court, a judge will decide what is fair, and excessive interest and costs may even be cancelled.   Note: thelawon late payments onB2Btransactions does not specify the compensation amount of that may be charged, but states that reasonable compensation may be claimed. Therefore, if you do not specify your own interest and costs, you will fall back on this legislation (for B2B), leaving room for interpretation but also discussion.  

5. Don’t force yourself to send noticesfor compensation

Save yourself the trouble of proving that you have sent a notice of default. State that a notice of default isunnecessaryto charge fees and interest in the event of late payment.  

Example –Payments: Any invoice unpaid by due date will automatically and without noticebe subject to  payment of  interest, with a minimum of 12 % onan annual basis,from the date of the invoice. Furthermore, fixedcompensation will be automatically applied without notice. This indemnity is setat 12 % of the amount due and is subject to a minimum amount of € 100,00. Any invoice unpaid at the due date renders, automatically and without notice, all unpaid invoices, even if not yet due, immediately due.

6. Dispute validation period

It is best to set a limit to theperiod within which a dispute can be made. For B2B cases 15 days seems appropriate. It is also best to include in your general terms and conditions that any dispute must be submitted by registered letter.  

Example –Disputes: In order to be valid, disputes or complaints must be submitted by registered letter within fifteen days of the invoice date.

7. Retention of title

The delivered goods become the property of the purchaseronly after they have been paidin full.  

Example –Retention of title: The seller will remain the owner of the goods sold until all claims are settled in full. As long as this is not the case, the buyer will not be able to dispose of the goods, pawn them, lend them or dispose of them in any way. Nevertheless, the buyer will bear all the risks linked to the loss or deterioration of the goods, whatever the cause. Until the price has been paid in full, the buyer agrees to keep the goods available tothe seller in perfect condition. In the event of imminent bankruptcy of the buyer, foreclosure or any depreciation of the property, the buyer will be required to informthe seller in writing within 24 hours.

And perhaps the most important tips:

• Make sure that you canprove that the buyer accepted your terms & conditions. This is best done as soon as the client signs the order, by specifying next to his signature that such signature entails agreement with your sales terms and conditions.
• Make the effort toread the buyer’s general purchase terms and conditions(if he has any)!

  If you have any questions about your general terms and conditions and/or the above clauses, please do not hesitate tocontactus ( or +32 16 74 52 00 or sales@tcm.be). Sources:

• https://graydon.be/blog/wat-als-verkoopsvoorwaarden-botsen?fbclid=IwAR3ApN0_IQyFgX-NoNqJbsAa8yvb0aQzbMW-jOZDERVbwEpOp7xOSTKe_0c
• https://www.lexalert.be/nl/article/waarom-een-beding-van-eigendomsvoorbehoud-voorzien-uw-algemene-voorwaarden

 Published 15 June 2020