Are you self-employed, sell products or provide services? Be sure to have good general terms and conditions. General terms and conditions provide a framework for the relationship between parties, define the rights of each and often either prevent disputes or provide a way to resolve them.
THEY ARE RECOMMENDED!
The law doesn’t require you to have general terms and conditions, but it is highly recommended that you put them in place. It would be a shame not to have them. When nothing is in place, the agreement between you and your customer will be subject to the provisions of the Civil Code. That’s good, but the legal regime is sometimes less appropriate for the actual situation between the parties and the general terms and conditions of sale you wrote can, in some cases (as long as they are legally admissible) be more in your favour.
THEY ARE UNQUE!
General terms and conditions of sale are always tailored. You won’t find a document you can use as is anywhere on the Internet. When you find a document you can use as a starting point, make sure that you are on a Belgian website (and not a French one or a Canadian one, for example) and that you can rely on the right people to add, change or remove anything that doesn’t apply to your situation. Based on your field of business and your needs, a lawyer will recommend that you use several specific clauses or, on the contrary, will tell you that you can use simplified general terms and conditions.
HOW TO WRITE GENERAL TERMS AND CONDITIONS OF SALE
When writing your general terms and conditions of sale, be sure that they are:
- written in legible characters;
- written clearly and understandable. If there are too many interpretations possible, a judge will decide, either for or against you;
- written in a language the other party is fluent in. In Belgium, this will often be French/Dutch together with English/German or another language depending on the audience. They can be bilingual or trilingual;
- Valid. Avoid taking the risk that a judge will dismiss a clause. An abusive clause is a clause which creates a real imbalance between the rights and obligations of the parties, such as a clause which will solely or excessively benefit one of the parties.
For example, the legal warranty period for a defective product in a sales contract is two years. If a clause provides for a shorter period, it will certainly be deemed to be abusive and struck by the judge. On the other hand, the contract and the other clauses of the general terms and conditions will remain in effect for the parties.
It’s important to be particularly attentive in relationships with consumers (they are better protected than companies). For more information on the definition of an abusive clause and on good conduct guidelines on the matter see this page of FPS Economy (FR).
EXAMPLES AND EXPLANATIONS OF CLAUSES
Do you want to enable a deposit or payment of the total amount at once? Do you want to offer payment in instalments? Do you want payment before/after the services are provided, etc. Think about realistic options for you and your customers.
LATE PAYMENT INTEREST CLAUSE
There is no reason why you should assume the consequences of late payment. As someone who is self-employed, you have fixed expenses, VAT deadlines, etc. and any late payment could result in problems for you. If you include a late payment interest clause, select the rates with a legal expert (currently generally between 8% and 12%) and confirm the rates in the clause. You can also mention that interest is due without prior notice as of the due date of the invoice. Without these clauses, the legal interest rate will be applicable also, but it is (currently) only 8% in commercial law and interest only starts to accrue 30 days after the due date of the invoice.
For information, this clause does not come under criminal law. It relates to the payment of a fixed indemnity in the event of non-payment or late payment by your customer. The cause commits the person to pay, in the event of non-execution of the agreement, a set compensation fee for any prejudice potentially incurred due to the non-execution.
The amount of compensation cannot exceed 12% of the principal amount. Provide for a (reasonable) minimum set fee. Here is a theoretical example: for an invoice of €100, you could provide for a late payment interest rate of 10% with a minimum of €30. Note, it must be reciprocal in order to be valid when the contract is agreed with a private individual (consumer): you must also commit to paying compensation to your customer in the event of non-execution or poor execution of the contract on your part (for example: poor workmanship). This reciprocity isn’t compulsory for contractual relationships with other businesses.
RETENTION OF TITLE CLAUSE
This clause states that the seller retains title until full payment of the amount due by the buyer. If this clause is included, the goods will remain property of the seller until the invoice has been paid in full.
TRANSPORT, DELIVERY AND TRANSFER OF RISK CLAUSE
This clause can be important in the event of litigation when it’s necessary to know at what time ownership was transferred. See the FPS Economy page (FR) on the topic and another for remote sales (e-commerce) (FR).
GRACE PERIOD AND MERCHANDISE RETURNS CLAUSE
Here are the basic rules (FR).
CLAUSE TO DETERMINE THE COMPETENT JURISDICTION (E.G. THE COURTS OF BRUSSELS) AND THE APPLICABLE LAW (E.G. BELGIAN LAW).
DISCLAIMER OR LIMITATION OF LIABILITY CLAUSE
In the event that you are unable to provide the service or goods agreed to, this clause will limit your liability up to an amount which you have set. Note that it is only valid in certain specific cases and cannot be too high (e.g. force majeure, a completely unpredictable situation).
The presence or absence of these causes in your GTC and their exact content and formulation must absolutely and always be written and/or validated by a legal expert or a lawyer who knows your specific project and situation. The clauses must correspond to your business. The examples above do not replace a consultation with a professional but are there to help you and inform you about the general approach to prepare you.
ACCEPTANCE AND ENFORCEABILITY OF THE GENERAL TERMS AND CONDITIONS
In order to be enforceable on the customer (i.e. binding and applicable), the general terms and conditions must be accepted by them, that is, they have been provided with the opportunity to review the contents. It is your responsibility to prove that your customer received them and was able to review them on time: at the latest at the time the contract is signed.
Attaching them to an invoice would be too late. They must be provided during the sales process and not after the sale has already completed, or they may not be enforceable on the customer. In the case of e-commerce, the buyer must be able to approve the GTC during the purchase process. If your business consists of orders of specific goods or services, we recommend that you publish them everywhere you can. For example, on your website and in all documents: order forms (FR), estimates (FR), invoices, etc. even though this isn’t compulsory. We recommend not limiting yourself to the website.
If they appear on the back of a document, you should draw the other party’s attention to their presence on the front of the document. In other words, you should take as many precautions as possible to be able to prove that you did everything you could to ensure that the customer was aware of them.
The other party must unequivocally accept the general terms and conditions, i.e., they must give their tacit or express consent. Acceptance can mean:
- a signature at the bottom of the general terms and conditions or on a document which refers to them expressly and indicates where they can be viewed;
- the absence of any protest by the other party when you provide them to them;
- checking a specific box (“I accept the general terms and conditions”) for contracts concluded remotely (on the Internet, for example). You will provide yourself with better coverage when you have a direct link to the general terms and conditions next to it, clearly visible and legible. You can also include a pop-up window to attract attention.
There are, however, exceptions to this rule. For example, when a contract is signed by two merchants who have been in business together for a long time, general terms and conditions sent after the contract is signed could be enforceable and binding on the parties.
AND IN THE OTHER DIRECTION? WHAT ABOUT INVOICES THAT YOU HAVE TO PAY AND THE GTC APPLICABLE TO YOU?
Any invoice which has not been disputed must be paid. When an invoice is not disputed, it is deemed to have been accepted. In the event of payment difficulties, you can always request a payment delay.
In the event of a dispute (for example, when work has been poorly executed by a worker, in the case of the delivery of non-compliant product or of a defective product), use registered mail to ensure that the dispute will reach the recipient. Whenever possible, it’s better to pay the amount of the portion of the invoice which you are not disputing: this is the “undeniably due” portion. For example, if two products are delivered and only one is defective, pay for the good one and dispute the rest.
Remember that late payment interest is still due if you pay after the due date of the invoice. Either it is explicitly provided for in the general terms and conditions of sale and you have to pay the interest at the rate stated (generally between 8% and 12%) from the date indicated (on condition that the general terms and conditions are enforceable on you, see above), or it will apply at the legal rate.
FREE ASSISTANCE IN BRUSSELS TO REVIEW YOUR GTC
LEGAL MEETINGS COORDINATED BY 1819
In cooperation with the Brussels bar, 1819 organises free 30-minute individual consultations with a specialised lawyer every first Monday of each month (excluding July and August). Register at The mybusinesspass.brussels Fly Flexi Pass (FR) for access to these services (mention 1819 as the referring organisation) or contact 1819.
LEGAL MEETINGS ORGANISED BY BECI AND THE CED
These are free individual consultations with a legal expert (pro-deo), based on a system implemented by the Brussels Region and organised by BECI and the CED. The meeting generally lasts 50 minutes. Address: Avenue Louise, 500, 1050 Brussels. Appointments can be made at +32 2 643 78 48 or online (FR).