GENERAL CONDITIONS UNDER THE LAWS OF THE NETHERLANDS ANTILLES AND ARUBA
General conditions may be nullified
Since 1 January 2001 the Netherlands Antilles Civil Code (CC) contains a section on general conditions. By including this section in the CC the legislator tried to strengthen the judicial supervision on the terms of general conditions in order to protect the contracting party against the use of general conditions, since, generally, they have no knowledge of or influence on the contents of these conditions.
The CC gives a broad definition of a general condition. When a certain clause or condition is used in a number of contracts the clause or condition is considered a general condition within the meaning of the CC. Other conditions in the CC which must be fulfilled for the law to be applicable, are that the general conditions must be part of a contract and they must be put in writing. Conditions which state the main subject matter of the contract, for example the price or a specific definition of the goods to be delivered, are excluded from the section in the CC.
A party is bound by general conditions of the other party, the user, when (i) he accepted them or (ii) when the user could rely on the fact that the other party agreed to the applicability of the conditions. An explicit agreement regarding the specific contents of the general conditions is not necessary for the contracting party to be bound by the conditions.
General conditions may be nullified when the contracting party was not offered any reasonable possibility to take cognizance of the contents of the general conditions. The law defines a reasonable possibility as the user handing the contracting party the general conditions before or during the closing of the contract or, if this is not reasonably possible, to mention the possibility to request a free copy of the general conditions if they have been filed with a Court or the Chamber of Commerce.
A second ground for nullification is the fact that the general conditions are unreasonably onerous. In this respect attention should be paid to the disposition and contents of the contract, the way the general conditions were effected, the mutual distinguishable interests of the parties and the circumstances of the case.
Karel Frielink
Attorney (lawyer) / Partner
