Unfair terms between businesses: time to reread your T&Cs

The Act of 4 April 2019 added protection against unfair terms in business-to-business contracts to the Belgian Code of Economic Law. It applies to contracts concluded, renewed or amended from 1 December 2020.

The general principle

A term is unfair if, alone or combined with others, it creates a manifest imbalance between the parties’ rights and obligations. Courts assess it in light of the contract as a whole.

A black list and a grey list

• Black list (4 terms): always prohibited. For example, a term allowing one party to change the characteristics of the product or service unilaterally without valid reason.
• Grey list (8 terms): presumed unfair unless proven otherwise. For example, a term tacitly renewing a fixed-term contract without a reasonable notice period.

An unfair term is prohibited and void. The rest of the contract generally remains valid if it can stand without it.

What we recommend

• Review your terms and framework agreements renewed since late 2020;
• Remove overly broad liability exclusions and unjustified unilateral changes;
• Provide reasonable notice periods and clear review mechanisms;
• Make sure your terms are actually accepted (not just printed on the back of an invoice).