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  • Writer's pictureKris Somers

A battle of forms

Let's say you are a B2B seller of IT services. You conclude your business mostly online these days, on the basis of orders that your customers place via e-mail or directly on your website. You have your general conditions of sale available on your website, but you do not actually refer to them in your order confirmation. You do however attach them to your invoice.

So what if a customer places an order with you using his own order form, containing his terms and conditions (which of course conflict with yours)? Which set of terms govern your relationship?

The so-called battle of the forms is a staple in any law student's textbook. It is therefore remarkable that so many companies remain largely unaware of it, until it hits them.

Disregard of this battle of forms may have dire consequences. A lot of court cases hinge on the applicability (or lack thereof) of a certain clause embedded in the fine print of a party's general terms and conditions. Many a business has seen its claims trumped all too late into the game by a challenge of what it assumed were valid and prevailing conditions or the invocation of conflicting terms by the other party.

So who wins this battle?

Like many things in life, it is mostly a question of good timing.

The general rule of thumb (in most law systems, including Belgium) is that the battle of forms is won by the party who makes their terms known (or at least available to be known) to their counterpart at the moment the contract is concluded. Before may be too soon, after is too late.

In our example above, it is likely that the purchaser of the IT services will be able to claim applicability of its terms included in the order, to the extent the seller fails to counter those upon order confirmation with his own terms when concluding the deal. The general terms and conditions on the seller's website (unless if they were properly referenced on made available at order confirmation) would be effectively countered by a delivery of materials based on an acknowledged order including conflicting terms. And the terms on the back of the invoice fall within the category of "too little too late" (unless the transaction would involve a commercial sale of goods within the meaning of the present Belgian Code of Commerce and in the case no other terms were fielded prior to the conclusion of the transaction).

With the entry into force of the new Belgian Law on proof in November 2020, the above changes somewhat, at least in relation to a transaction between tradesmen or commercial organisations. Whereas so far uncontested general terms and conditions on a B2B invoice were only relevant and enforceable in relation to a sale and purchase of goods, the new Law extends the applicability of such terms to any B2B trade relationship, whether it be for the provision of goods or services alike.

Even with that (important) update, you should be aware of the eventuality of a battle of the forms and ensure that you are well prepared to defend the applicability of your general terms and conditions to your transaction, just in case they would be contested.

If you are uncertain on whether you would emerge victorious from a battle of the forms, talk to your lawyer before the battle ensues.

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