Unfair terms in B2B contracts - a practical guide

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.

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

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. 

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.

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.

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.

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.

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.