GENERAL CONDITIONS UNDER THE LAWS OF THE DUTCH CARIBBEAN
General conditions may be nullified
Since 1 January 2001 the Civil Code (CC) of Aruba and the Netherlands Antilles contains a section on general terms and conditions. By including this section in the CC the legislator tried to strengthen judicial supervision of the terms of general conditions in order to protect contracting parties against the use of general conditions, since they, generally, have no knowledge of, or influence on, the contents of these conditions.
The CC gives a broad definition of general conditions. When a certain clause or condition is used in a number of contracts then 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 the contract and they must be put in writing. Conditions stating 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 the general conditions of the other party, the user, when (i) he accepted them or (ii) when the user can 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 if 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 a contract, or, if this is not reasonably possible, to mention the possibility of requesting 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 nature and contents of the contract, the way the general conditions were effected, the mutually distinguishable interests of the parties and the circumstances of the case.
Karel Frielink
Attorney (Lawyer) / Partner
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