Can an expiration period in general terms and conditions pass muster?

In consumer law, the protection of the weaker party (the consumer) plays an important role. If an entrepreneur terms and conditions practices that weaken the consumer's position, such a clause may be considered unreasonably onerous. This is regulated by law in Section 6:233 of the Civil Code in conjunction with the black list of article 6:236 BW and the gray frame of section 6:237 of the Dutch Civil Code. An expiration clause is a clause which stipulates that certain rights expire after a certain period of time. As a result, you cannot, for example, after a certain time compensation claim more from your opposing party. Conner Canters is lawyer contract law and explains when a sunset clause is permissible and when it is not.

Vervalbeding is sometimes blacklisted as prohibited general terms and conditions

The black list lists specific clauses that are always unreasonably onerous when included in general terms and conditions. This only applies in a legal relationship between an entrepreneur (the user of the general terms and conditions) and a consumer. If a clause is on this list, that clause is voidable. Article 6:236 sub g of the Dutch Civil Code, for example, states when a lapse clause is unreasonably onerous.

Namely, in the case of a clause

“that reduces a statutory limitation or expiration period within which the other party must assert any right to a limitation or expiration period of less than one year, respectively”

Thus, if a statutory limitation or expiration period is shortened to less than one year, that clause is unreasonably onerous.

A clause that causes rights and defenses to lapse may be gray listed

The gray list contains clauses that are presumed to be unreasonably onerous. This presumption is rebuttable. It is then up to the user (i.e. the entrepreneur) to prove that the clause is not unreasonably onerous. If a clause is on this list, that clause is voidable unless the user refutes that presumption. Article 6:237 sub h, for example, states when a lapse clause is presumed to be unreasonably onerous.

Namely, in the case of a clause

“which, as a penalty for certain conduct of the other party, including failure to act, sets forth forfeiture of rights accruing to it or of the power to raise certain defenses, except to the extent that such conduct justifies the forfeiture of such rights or defenses.”

Thus, a clause in which consumer rights or defenses lapse as a sanction of certain conduct or omission is presumed to be unreasonably onerous.

Expiration clause must also not be unreasonably onerous in itself

In the event that a clause does not fall under the black or gray list, a clause may still be unreasonably onerous under Section 6:233(a) of the BW. This is a safety net for the consumer, so to speak. The difference with the black and gray list lies mainly in the burden of proof. The burden of proof as to whether a clause is unreasonably onerous on the basis of the open standard lies with the consumer. Unlike the gray list, where it is up to the user to rebut the presumption that a term is unreasonably onerous. With the black list, a term is automatically unreasonably onerous.

The construction industry often uses the AVA2013: a set of general conditions prepared by a trade association. In 2024, the court ruled that a lapse clause included in the AGM2013, is unreasonably onerous. You can read why the judge came to that judgment in this blog.

So when is a sunset clause in general terms and conditions acceptable?

On March 3, 2020, the Supreme Court (ECLI:NL:HR:2020:531) commented on a sunset clause that the statutory statute of limitations or expiration period shortened. The Supreme Court considered:

“Art. 6:236, opening words and under g, DCC refers exclusively to clauses which shorten a statutory limitation period to a limitation period of less than one year or which shorten a statutory limitation period to a limitation period of less than one year. Such clauses are deemed to be unreasonably onerous.

Clauses which shorten a statutory limitation period to a limitation period of one year or more, or which shorten a statutory limitation period to a limitation period of one year or more, do not fall under Article 6:236 opening words and under g of the Dutch Civil Code and, as far as their content is concerned, can only be tested against the open standard of Article 6:233 opening words and under a of the Dutch Civil Code. These clauses are therefore not considered or suspected to be unreasonably onerous in advance.

All other lapse clauses, including lapse clauses that replace a statutory limitation period, fall within the scope of Article 6:237, opening words and under h, BW. These clauses are in principle presumed to be unreasonably onerous.”

It follows that a clause that shortens the statutory limitation or expiry period to one year or more can only be tested against Section 6:233(a) of the Dutch Civil Code. All other (shorter) expiry clauses are presumed to be unreasonably onerous. The wording of such a clause is therefore of decisive importance.

Lawyer in drafting general terms and conditions

The question whether a lapse clause 1) is unreasonably onerous, 2) is presumed to be unreasonably onerous, or 3) can only be tested against the open standard of Section 6:233(a) of the Dutch Civil Code, depends on the legal qualification of the clause. Would you like to include a sunset clause in your general terms and conditions and be sure that it will stand up if you invoke it in court? Then contact up with the lawyer contract law From Lexys.

This is what you need to know about general terms and conditions