Black list and gray list in general terms and conditions

The terms and conditions of a company indicate the terms and conditions under which that company does business. These provisions only apply when the company declares those general terms and conditions applicable to the contract and makes them available to the other party. In order to protect consumers against ‘incorrect’ general terms and conditions, the European legislator drew up the so-called black list and gray list of general terms and conditions. These are now also enshrined in Dutch law. 

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

Blacklist general terms and conditions

To prevent a consumer from being unreasonably disadvantaged by general terms and conditions, the black list exists. Blacklisted clauses are always considered unreasonably onerous clauses and are therefore prohibited. An example of this is if a company limits a consumer's authority to termination of an agreement excludes or limits. If a company does include blacklist provisions in its terms and conditions, consumers can always void them. The blacklist is contained in article 6:236 of the Civil Code (BW). 

Gray list general terms and conditions

In addition to the black list of prohibited terms, the gray list also exists. Like the black list, the gray list applies only to contracts between businesses and consumers. The gray list of general terms and conditions contains provisions that are suspect to be unreasonably onerous. An example is the exclusion of a legal obligation to pay damages. If they are nevertheless included in general terms and conditions, the company must be able to prove that the provision is not unreasonably onerous for the consumer or that it would be unreasonable for the company not to include the provision. The consumer can void a gray list provision if adequate proof is not provided by the user. The gray list is contained in article 6:237 of the Civil Code (BW). 

Reflex effect: gray and black list between companies

Although in principle the gray and black list in general terms and conditions only apply between a user and a consumer, in certain cases they can also apply between a user and a small business owner. This is called the reflex effect. Like consumers, sole proprietors, sole traders or other small entrepreneurs cannot be required to have legal knowledge. Thus, they are also protected by the gray and black lists. 

Effects of the gray and black lists

A company that includes blacklisted provisions in its general terms and conditions cannot invoke them. They are always unreasonably onerous and can always be annulled by the consumer. Provisions in general terms and conditions that are on the gray list are presumed to be unreasonably onerous. To successfully invoke such clauses, a company must prove that they are not unreasonably onerous. If the consumer subsequently nullifies one of the provisions of the general terms and conditions, this does not affect the validity of the contract itself. It is therefore very important to draft general terms and conditions that do not contain prohibited provisions. The contract law attorney at Lexys Lawyers can tell you more about the effect and consequences of the gray and black list in general terms and conditions. Also, Lexys Advocaten's contract law attorney can help you draft watertight general terms and conditions.