Joris DeeneYou have work done by a contractor. Afterwards, a dispute arises about the invoice and the contractor suddenly charges high interest and damages, referring to his “general conditions”. However, you only saw those terms and conditions for the first time on the invoice itself.
Do you have to pay these? No. A ruling by the Court of First Instance East Flanders (Ghent) on 12 May 2025 confirms a double penalty: not only are the terms and conditions not valid because you were unable to view them in advance, but if the clause is also unlawful (e.g., unilateral), the contractor loses even his right to ordinary statutory interest.
The legal context of the case
In a recent case before the Ghent Court, a dispute arose between a contractor and his customers, who were consumers. The dispute centered on two issues:
- The prize: The contractor claimed that the works were performed “on a time and matetial basis,” but the clients argued that a fixed price of 4,000.00 euros had been agreed upon. The court vindicated the clients based on previous communications.
- Interest and damages clause: The contractor claimed conventional interest and liquidated damages from 10%, as provided for in its terms and conditions. He argued that the customers had accepted these terms and conditions by paying a previous invoice for materials that referred to the terms and conditions.
The clients disputed that they had ever received or accepted these terms and conditions prior to the works.
The court's decision
The court followed the consumers and completely rejected the contractor's claim for interest and damages. The court's reasoning consisted of three crucial steps.
Step 1: General terms and conditions are non-enforceable
The court notes that the terms and conditions are non-enforceable to consumers. The reason is simple: consumers must have had a reasonable and prior opportunity to acquaint themselves with the terms and conditions prior to the conclusion of the contract.
The contractor could not prove that this had happened. Even if the customers had paid an invoice stating the terms and conditions, this was after the works had already been (partially) performed and thus the contract had already been concluded. A reference on an invoice comes too late.
Step 2: Moreover, the clause is unlawful
The court goes a step further and examines the content of the clause itself. Because this is a dispute between a business (the contractor) and consumers, consumer law applies (Book VI of the Code of Economic Law).
The contractor's damages clause provided for an interest of 10% and liquidated damages of 10%. However, the court noted that the general conditions did not provide a reciprocal and equivalent damages clause in case the contractor failed to fulfill its obligations.
This lack of reciprocity makes the clause illegal on the basis of Article VI.83, 17° of the Economic Code.
Step 3: No right to statutory interest as a “safety net”
This is the crux of the ruling. The contractor asked the court that if his general conditions were invalid, then at least award him statutory interest based on general (supplementary) law.
The court categorically refuses to do so. For this, it refers to the settled case law of the European Court of Justice (including the Gupfinger- and Dexia-judgments). That case law states that when a term is unfair (unlawful), the court must disapply it entirely. He may not ‘save’ the clause by replacing it with the statutory regulation (the ‘supplementary law’).
The reasoning is that if a business knew that his unlawful clause would simply be replaced by the statutory interest in the event of a dispute anyway, there would be no reason (no deterrent effect) to stop using such unlawful clauses.
The conclusion is harsh but clear: the contractor gets no contractual interest, no damage compensation, and no statutory interest.
Legal analysis and interpretation
This ruling perfectly illustrates the double protection consumers enjoy in terms of general terms and conditions.
- Contractual protection (acknowledgment): This is the basis of contract law. One cannot be bound by terms of which one could not have reasonably known before entering into the contract. The burden of proof of this is on the business. A mere reference on an invoice, as reaffirmed here, is largely insufficient.
- Content protection (consumer law): This is the second, and often more powerful, line of defense. Even if a consumer had signed the general terms and conditions, a judge can still test them against the black CEL. A lack of reciprocity for damages clauses (Art. VI.83, 17°) is a classic example that often leads to the nullity of the clause.
The real lesson in this ruling is the harsh sanction. Applying the case law of the Court of Justice, the court decides that an illegal clause deprives the business of any right to compensation for that particular item. The business cannot revert to the common law. This sends a powerful message: those who use unlawful clauses risk being left empty-handed.
What this specifically means
For consumers
- Check the quote: Always read the fine print before signing an offer. Actively ask for terms and conditions if they are only referenced.
- Disputed invoices: Don't just pay an invoice on which interest or damages suddenly appear that you never agreed upon. There is a real chance that you may not legally owe them.
- Know your rights: Even if you agreed, a clause that imposes 10% damages on you for late payment but does not impose any damages on the contractor for late delivery is probably unlawful and void.
For business owners and contractors
- Provide acceptance: This is absolutely crucial. Make sure your customer (individual and company) takes an active action to accept your terms and conditions before the start of work. This can be done through a signed quote containing the terms and conditions, an ‘opt-in’ check mark on your website, or an email confirmation.
- Audit your terms and conditions (B2C): Check your terms and conditions on unlawful clauses, especially in B2C relationships. The main pitfall is the lack of reciprocity for damages clauses.
- Understand the risk: Including an illegal clause in the hope that it will hold up is a dangerous strategy. This ruling confirms that by doing so, you lose not only the invalid clause, but also your right to all interest, even statutory.
Frequently asked questions (FAQ)
What is the difference between ‘non-enforecable’ and ‘unlawful’?
’Non-enforceable‘ (or inapplicable) means that the terms never became part of your contract, usually because you could not read and accept them in advance. ’Unlawful' means that a specific clause, even if you accepted it, violates (consumer) law because it grossly upsets the contractual balance. An unlawful clause is void.
I signed an offer that said “general conditions on the back,” but the back was blank. Are those valid then?
No. Mere reference is not sufficient. The court rules that you must have had an effective and reasonable opportunity to know. If the terms were not physically attached to it (or if a link did not work), you did not have that opportunity and the terms are non-enforceable.
My contractor charges 12% interest, isn't that in the law?
No. The statutory interest rate (for individuals) is much lower and is setannualy. A higher rate (such as 10% or 12%) is a contractual interest, which is valid only if it is in a valid and opposable contract. Moreover, for consumers, that clause must be reasonable and reciprocal in order not to be unlawful.
Conclusion
This ruling is a clear warning for business in Belgium : make sure that your general terms and conditions are not only correctly accepted, but also fully in line with the law in terms of content (especially in a B2C context). An illegal clause can cost you dearly and deprive you of any right to interest or damages.
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