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Unfair terms in B2B contracts - a practical guide

Commercial and Economic Law

Unfair terms in B2B contracts - Introduction

1 December 2020 marks a major turning point for business-to-business contracts (B2B), as that is the date on which the law prohibiting unfair contract terms will enter into force.

Over the last few months, our team has been working on a practical guide to help businesses through the maze of new principles that are often very hazy.

Unfair contract terms
Unfair terms
weaker party
manifest imbalance
Commercial and Economic Law

Which contracts are subject to the B2B law?

The Law on unfair terms (B2B law) applies to almost all contracts concluded between businesses, irrespective of the nature of the contract.

B2B law
B2B contracts
unfair B2B terms
essential terms
ancillary terms
Commercial and Economic Law

The effect of the B2B law on your general terms and conditions

The B2B law inevitably has an important effect on the general terms and conditions of your agreements. In this section of our practical guide we explain why. You will find out how important it is to review your general terms and conditions (or have them reviewed) as soon as possible and, if necessary, adapt them to the B2B law. 

unfair B2B terms
B2B law
B2B contracts
general terms and conditions
black terms
grey terms
Commercial and Economic Law

The pitfalls of the B2B law for services and distribution contracts

As the B2B law applies to all contracts between businesses, it will generally concern contracts for the provision of services and commercial distribution that are common in business life. These contracts sometimes reflect a certain imbalance between the parties and will therefore be a potentially important target for the application of the principles of the B2B law.

B2B contracts
service contract
distribution contract
sales concession agreement
franchise contract
provision of various services
Commercial and Economic Law

Unfair B2B terms in franchising contracts

As the B2B law is specifically adopted with a focus on the situation of franchisees who could sometimes be faced with unfair terms and conditions, franchise contracts are therefore in the middle of the debate in respect of this new law.

Hence, it is important to examine the clauses that may create a "manifest imbalance" between the rights and obligations of the parties to a franchise agreement.

B2B law
manifest imbalance
differentiated balance of power
Real Estate, Renting and Co-ownership

Unlawful terms in B2B (commercial) leases

The B2B Law applies to all types of contracts concluded between businesses and therefore also to all business-to-business rental contracts.

Common types of business-to-business rental agreements are the commercial rental and the office rental.

Since the commercial rental law is also mandatory, except where the law allows for a deviation, some situations will cause a difficult balancing exercise.

unlawful terms
commercial lease
commercial rental contract
commercial rental agreement
office rental contract
rental contracts
Corporate Law and M&A

How the B2B law relates to company law

Unlike in the case of financial services and public procurement, company law, and company contracts in particular, are not explicitly excluded from the scope of the new B2B law.

However, this does not mean that the B2B law can be applied unambiguously to every agreement concluded within the framework of a company. Each contract and each situation will therefore have to be examined carefully.

B2B contracts
company law
agreement to set up a company
shareholders' agreement
share transfer agreement
core clauses
unfair B2B terms
Unfair contract terms
Finance and Banking

Consequences of the new B2B law on the banking and insurance sector

As the new B2B law applies to all types of contracts between businesses, banking and insurance contracts cannot escape it as well. However, there is an exception for financial services.

In this section of our practical guide, we list the consequences of the B2B law for companies in the banking and insurance sector.

You will notice that the B2B law will have an impact on this sector, and that it is therefore essential that their standard clauses are also examined. 

B2B contract
financial services
banking and insurance sector
insurance company
exclusion of financial services