General terms and conditions of sale: why? How to draft them?
General terms and conditions: recommended
The drafting of general terms and conditions is not required by law, but it is strongly recommended. They are most definitely worth having. Indeed, if you have not made any provisions, the contract between you and your client will be subject to the provisions of the Belgian Civil Code. While that is no bad thing, the legal system may turn out not be so well adapted to the actual situation between the parties, and that the general terms and conditions you have drafted may in some cases (and as far as they are legally permissible) result in a more favourable outcome for you.
General terms and conditions: must be unique
General terms and conditions of sale are always tailored to your needs. You will not find any document on the internet that you can adapt as such. If you use a document you have found as a basis for your terms and conditions, make sure you consult a Belgian website (and not one from the Netherlands, for example), and that you surround yourself with the right people in order to add or amend what is necessary, or to delete what does not apply to your situation. A legal expert will tell you, based on your field of activity and your needs, whether you need to include specific clauses or whether you can limit yourself to simplified general terms and conditions.
How to draft general terms and conditions
When drafting general terms and conditions, you need to make sure that they are:
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written in a legible font;
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formulated in a clear and understandable way. If they allow for too broad an interpretation, the court will decide on the matter, in your favour or to your detriment;
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written in a language that the other party to the contract is expected to understand. In Belgium, this is usually Dutch or French, and often also English and German or another language, depending on the target audience. They may be bilingual or trilingual;
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valid. Avoid the risk that a court has to cancel a clause. An unfair clause is one that creates an effective imbalance between the rights and obligations of the parties, such as one that gives one of the parties an excessive advantage. For example, the statutory warranty period for a faulty product in a sales contract is two years. If a clause provides for a shorter period, it will be found unfair by a court and cancelled. However, the contract and the other clauses of the general terms and conditions continue to apply between the parties.
You should take special care in the relationship with consumers (they are better protected than the professionals). Further information about the definition of an unfair clause and good practices in that regard can be found on this webpage from the FPS Economy.
Examples of clauses in general terms and conditions
PAYMENT TERMS
Would you like to receive an advance payment, or the full amount immediately? Would you like to propose payment in instalments? Do you want payment to be made before or after performance? These are just some examples: formulate terms that are realistic for both you and your clients.
CLAUSE ON DEFAULT INTEREST
You do not have to suffer the consequences of late payment. As a self-employed person, you have fixed costs, VAT deadlines, and so forth, and a late payment can cause you problems. If you include a clause regarding the application of default interest, determine the rate in consultation with a legal expert (usually between 8 and 12%) and specify the rate in the clause.
You can also state that the interest is due from the due date of the invoice and without prior notice of default. Without such clauses, the statutory interest rate will also apply, but currently it is only 8% under commercial law. Furthermore, this interest does not begin to accrue until 30 days following the due date of the invoice.
PENALTY CLAUSE
For your information, this clause is completely separate from criminal law. It relates to the payment of fixed compensation in the event of non-payment or late payment by your client. With this clause, a person undertakes to pay, in the event of non-performance of the contract, a fixed amount of compensation for any losses suffered as a result of such non-performance. The amount of such compensation must not exceed 12% of the principal sum. Provide for a (reasonable) fixed minimum amount.
A theoretical example: for an invoice of 100 euros, you can make provision for default interest of 10% with a minimum of 30 euros. Please note: this default interest must be reciprocal in order to be valid if the contract is concluded with a private individual (a consumer): you must therefore also undertake to pay compensation to your client in the event of non-performance or poor performance of the contract by you (for example: poor performance of work). This reciprocity is not mandatory for contractual relationships with another professional.
RETENTION OF TITLE CLAUSE
This is a clause by which the seller reserves the right of ownership until full payment of the sum due from the buyer. If this clause is provided for, the goods will consequently remain the property of the seller until the invoice is paid in full.
CLAUSE ON TRANSPORT, DELIVERY AND TRANSFER OF RISK
This clause can be useful when, in the event of a dispute, it is necessary to know at what point the transfer of ownership took place. See here a webpage of from FPS Economy on this subject and another relating to distance selling (e-commerce).
CLAUSE CONCERNING THE CANCELLATION PERIOD AND THE RETURN OF THE GOODS.
See the basic rules here.
CLAUSE CONCERNING DEFECTIVE PRODUCTS
It may be advisable to establish in advance the procedure to be followed if an ordered product arrives damaged and what the conditions for return and refund are in that case, depending on where the responsibility lies (supplier, courier).
CLAUSE INDICATING THE COMPETENT COURT (E.G. COURTS OF BRUSSELS) AND THE APPLICABLE LAW (E.G. BELGIAN LAW).
CLAUSE CONCERNING INDEMNITY OR LIMITATION OF LIABILITY
If you are unable to perform the agreed service or deliver the agreed goods, this clause allows you to limit your liability to an amount that you determine. Please note that this clause can only be applied in specific cases and cannot be defined too broadly (e.g. force majeure, completely unforeseeable situation).
The inclusion or absence of those clauses in your GT&Cs, and their exact wording and precise content absolutely must be drafted and/or validated by a legal expert or lawyer who is familiar with your project and personal situation. The clauses must actually correspond to your activity. The above examples are not a substitute for a consultation with a professional, but serve to provide you with inspiration and general information by way of preparation.
CLAUSE ON THE PROCESSING OF PERSONAL DATA
If personal data is collected (whether or not through the use of a website), this clause must specify the purposes for which you intend to use the data (e.g. to process an order and carry out a delivery or for marketing purposes). You must also specify how long you will retain the data.
COVID-19 CLAUSE (PROVISION OF SERVICES)
It may be useful to include a clause in case COVID-19-related measures prevent you from providing a service (e.g. resulting from the closure of public places, restriction of social contact, quarantines, lockdown, and others). A provision may be included stating that the COVID-19 pandemic is not regarded as a case of force majeure. However, it is necessary to set out in writing in advance what you and the other party/client are able do if you are unable to meet your obligations in this regard (postponement to a later date, partial/full refund, etc.). It might then be best to create a separate document to avoid having to change your basic general terms and conditions once the pandemic is over, or conversely, to make it easy to amend this document.
ACCEPTANCE AND ENFORCEABILITY OF THE GENERAL TERMS AND CONDITIONS
In order to be enforceable against the client (i.e. binding and applicable), the general terms and conditions of sale must be accepted by the client, i.e. it must have effectively had an opportunity to review their contents. Your task is to prove that your client received them in good order, and had the opportunity to read them in good time: no later than by the time of the conclusion of the contract.
Including them with an invoice is too late. The general terms and conditions must be communicated during the sale process and not when the sale is already concluded, otherwise you run the risk of them being unenforceable against your client. In e-commerce transactions, the buyer is required to approve the GT&Cs during the purchase process. If your activity involves the ordering of well-defined goods or services, we encourage you to publish them wherever you can. For example, on your website and on all useful documents: order forms, specifications, invoices, etc., even if it is not mandatory. We recommend that you do not limit yourself to your website.
If the general terms and conditions are shown on the reverse side of a document, the other party's attention should be drawn to the existence of those terms and conditions on the front. In other words, you have to take as many measures as possible to be able to prove that you have done everything possible to give the client the opportunity to read them.
The other party must have accepted the terms and conditions in some way, that is, it must have given its tacit or express consent. That acceptance can take the form of:
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a signature at the bottom of the general terms and conditions or on a document that expressly refers to them and states where they can be consulted;
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the absence of any dispute by the other party when you present them to it;
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the fact that the "I accept the general terms and conditions" box was ticked in the context of a remotely concluded contract (on the internet, for example). You can cover yourself even more effectively by adding a direct link to the general terms and conditions that is easily visible and readable. You can also set a pop-up window to open to draw attention to it.
However, there are exceptions to this rule. For example, if a contract is concluded between two traders who have been doing business with one other for a long time, the general terms and conditions that are transmitted after the drafting of the contract could, in principle, be enforceable and binding between the parties.
What about the general terms and conditions that apply to you?
An undisputed invoice must be paid. The absence of any dispute is regarded as acceptance of the invoice. In the event of payment issues, you can always request deferment of payment.
In the event of a dispute (for example, work poorly executed by a worker, delivery of a non-conforming goods or a defective product), it is preferable to send a registered letter to ensure that the notice of dispute reaches the addressee. If possible, it is best to already pay the amount of the part of the invoice that is not under dispute: that is the "amount indisputably due". For example, if two products are delivered and one of them is faulty, you pay for the conforming product now and dispute the remainder.
Remember that you always have to pay default interest if you pay after the invoice due date. Either, this is provided for in the general terms and conditions and you will have to pay interest at the indicated rate (usually between 8% and 12%), from the indicated date (provided, of course, that these general terms and conditions are enforceable against you, see above), or it will be applied at the statutory interest rate.
Reviewing your general terms and conditions: who can help?
LEGAL CONSULTATIONS COORDINATED BY THE 1819 SERVICE
On the first Monday of the month (except July and August), the 1819 service, in collaboration with the Brussels Bar, organises free individual 30-minute consultations with a specialised lawyer (in French). Register for these consultations through the Events section on the 1819 website or contact 1819.
LEGAL CONSULTATIONS ORGANISED BY BECI AND COM
These are free individual consultations with a (pro deo) legal expert, according to a system introduced by the Brussels-Capital Region and organised by BECI (Brussels Enterprises Commerce and Industry) and CED (Centre for Enterprises in Difficulty). In principle, the interview lasts 30 minutes. Address: Avenue Louise 500, B-1050 Brussels. The appointment can be made by telephone on +32 2 643 78 48 or online.
LOCAL ECONOMY offices
Local economy offices (LELs) provide support structures for (start-up) businesses that need help or support. The coaches are also able to advise you on setting up a business.
SDZ/SDI (NL/FR)
The SDZ (interprofessional trade federation) has a legal service that, for an annual fee (less than EUR 200/year), can help you to draft your general terms and conditions.
UNIZO (NL)
If you are a member of Unizo, you can get access to some templates of terms and conditions. Plus, these are available in different languages!
UCM (FR)
UCM offers a legal service to its members, in all matters relating to business life: civil and commercial law, company law and tax law. UCM lawyers are experienced, always up to date with the latest legislative developments, trained and used to listening to and advising the self-employed and heads of SMEs.
Who can help me ?
