Drafting terms and conditions in Belgium: what to include and when they apply

Many disputes between businesses, such as late payments, liability claims or cancellations, are won or lost on a single document that was often copied from somewhere years ago: the general terms and conditions. Drafting terms and conditions in Belgium that are tailored to your activity and legally up to date is one of the most cost-effective preventive measures a business can take. This article explains what they should contain, when they apply and which legal limits you must respect.

What should your terms and conditions always contain?

• Payment terms: the payment period, late payment interest and a penalty clause (schadebeding / clause pénale) for late payment, within the legal limits.
• Retention of title: you remain the owner of the goods delivered until they have been paid in full. This is your strongest weapon if a customer goes bankrupt, provided it was agreed in writing no later than at delivery.
• Delivery and performance: deadlines, the consequences of delay and a force majeure clause.
• Liability: a limitation of your liability, within the legal limits.
• Complaints: a deadline for reporting complaints about deliveries or invoices.
• Competent court and governing law: a choice of forum and a choice of law, so that a dispute with another business is settled by the court of your choice and under Belgian law. With consumers, that choice is severely restricted.

Drafting terms and conditions: how to go about it

1. Start from your sales process: map out how an order proceeds, from quotation to invoice, and at what point the customer gets to see your terms.
2. Distinguish between businesses and consumers: if you also sell to consumers, a separate set of terms or a separate chapter with the consumer rules is often the safest choice.
3. Write clearly: ambiguous clauses are, as a rule, interpreted against the party that drafted them. Also use a language your customer understands.
4. Refer to them every time: on your quotation, order confirmation, delivery note, website and invoice.

Retention of title in practice

A retention of title clause (eigendomsvoorbehoud / réserve de propriété) only works if it was agreed in writing, no later than the time of delivery (Article 69 of Title XVII of Book III of the old Civil Code). You can reclaim the goods as long as they are still at the buyer’s premises; if they have been resold, the retention of title in principle extends to the claims that take their place, such as the price owed by the new buyer (Article 70). If the buyer goes bankrupt, you must reclaim the goods in time, on pain of forfeiture, before the first report on the verification of claims is filed (Article XX.194 of the Code of Economic Law). So do not mention the retention of title only in your general terms, but also on your quotation, order confirmation and delivery note, and make sure your goods remain identifiable. For how to file your claim, read our article on a debtor who has gone bankrupt.

When do your terms and conditions apply?

General terms and conditions only form part of a contract if the other party actually took note of them, or at least had the opportunity to actually take note of them, and accepted them, as laid down in Article 5.23 of the Civil Code (Burgerlijk Wetboek / Code civil). Terms that only appear afterwards on an invoice are therefore vulnerable, especially on a first order. Between businesses, an invoice accepted without protest may serve as evidence, but that does not guarantee that the terms can be enforced against the other party.

Make sure, therefore, that your quotation, purchase order and order confirmation always refer expressly to the terms, and preferably have the customer sign them as agreed. A clause in which the customer irrefutably declares that they know terms they could not actually consult before the contract was concluded will not help you: between businesses, such a clause is on the list of terms that are always prohibited (Article VI.91/4 of the Code of Economic Law). For more on the evidential value of invoices, see our article on a disputed invoice.

What if your customer uses its own terms?

For contracts concluded since 1 January 2023, Article 5.23 of the Civil Code regulates the so-called battle of forms. If both parties refer to their own general terms, both sets form part of the contract, except for the clauses that are incompatible. However, no contract is formed if one party states, in advance or without undue delay after acceptance, expressly and not through its general terms, that it does not wish to be bound. If you want your terms to prevail, you must therefore stipulate this separately and expressly, and not only in the terms themselves.

Late payment between businesses

Between businesses, the Act of 2 August 2002 on combating late payment in commercial transactions provides for late payment interest that is due automatically, without formal notice, in the event of late payment. In addition, the creditor is entitled to a fixed compensation of 40 euros for recovery costs, and to reasonable compensation for higher recovery costs that it can prove. Your general terms can build on this, for example with a reasonable penalty clause, but cannot deviate from that statutory protection to the detriment of the creditor. To learn how to recover an undisputed invoice without going to court, read our article on the procedure for undisputed debts.

Force majeure and unforeseen circumstances

A good force majeure clause describes which events release you from your obligations and what happens next: a suspension, an extension of deadlines or a termination. For contracts concluded since the reform of the Civil Code, a party may moreover request renegotiation when an unforeseeable change of circumstances makes performance excessively onerous (Article 5.74 of the Civil Code). If that renegotiation fails within a reasonable time, the court may adapt or terminate the contract. This rule can be regulated or excluded by contract; think about it deliberately, just as you would about the consequences of breach of contract.

The legal limits

• With consumers, the Code of Economic Law (Wetboek van economisch recht / Code de droit économique) prohibits unfair terms and contains a list of terms that are always prohibited. Mandatory rules also apply to the recovery of consumer debts (Book XIX of that Code): a first reminder free of charge with a period of fourteen calendar days and statutory caps on penalty clauses. See our article on recovering debts from consumers.
• Between businesses, the Act of 4 April 2019 (the so-called B2B Act) subjects contracts concluded, renewed or amended from 1 December 2020 onwards to a review of unfair terms. A clause that creates a manifest imbalance between the rights and obligations of the parties is prohibited; some clauses are always prohibited, others are presumed to be unfair.
• Limitations of liability cannot apply to an intentional fault and must not deprive the obligation of its substance. With consumers, the limits are even stricter.

Old, aggressive templates are therefore regularly struck down by the courts, leaving you unprotected at precisely the decisive moment. An unfair clause is null and void, but the rest of the contract generally remains in force.

Frequently asked questions

Is a link to my website enough?

Between businesses, it may be enough if the customer’s attention was clearly drawn to the terms before the contract was concluded and they could easily consult them. Stricter requirements apply to consumers; for distance sales, you must also confirm the contract on a durable medium, such as an email or a PDF. We build the chain of evidence around your sales process.

I sell online to consumers. What should I watch out for?

For distance sales, you must clearly inform the consumer before the order about, among other things, the price, the delivery conditions and the right of withdrawal. As a rule, the consumer can withdraw from the purchase within fourteen days without giving reasons, except in the statutory exceptions. If you do not correctly inform them about that right of withdrawal, the period is extended by up to twelve months (Article VI.48 of the Code of Economic Law). Your terms must comply with these rules.

Can I change my terms and conditions later?

New terms in principle only apply to contracts concluded after the customer was able to take note of them and accepted them. A clause allowing you to change the price, the characteristics or the terms unilaterally without a valid reason is presumed to be unfair between businesses (Article VI.91/5 of the Code of Economic Law); with consumers, there is even less room. For ongoing framework agreements, a clear and balanced amendment mechanism is therefore essential.

How often should I update my terms?

Whenever the law changes in a way that affects your sector, and at least every few years. The reform of the Civil Code and the new rules for contracts between businesses have already made many older templates inaccurate.

Novex Advocaten is here to help

We draft tailor-made terms and conditions, review existing terms and assist you when they are invoked in a dispute. Also read our article on recovering unpaid invoices and on late payment interest and penalty clauses between businesses.

Call 0484 99 22 72 or email asfour@novexadvocaten.be for a fixed-price proposal.