Is a company bound by an unreasonable B2B contract?

Many business owners face standard contracts imposed by a supplier or partner. You recognize it: a "take it or leave it" proposal full of clauses that seem disadvantageous. Are you then completely bound once you have signed? Not necessarily. Belgian law protects companies against unreasonable clauses in B2B contracts, and a ruling by the enterprise court Hainaut, Charleroi division of 6 May 2025 shows how this protection works in practice.

The case: an ambitious real estate agent and a specialized marketing agency

A newly established real estate agency (hereafter 'M') wants to increase its brand awareness and knocks on the door of a communications and marketing agency (hereafter 'F') that presents itself as the specialist in the real estate sector.

F proposes a "win-win" partnership, based on a commission of 27% on M's sales. Even before a contract is signed, F gains access to all of M's social media accounts and CRM software and begins work.

Months later, the contract proposal follows. M disagrees with several clauses, calling the termination fees "completely disproportionate" and denouncing the "one-sided partnership where only F defines the rules.". Under pressure, and because F is already in full swing, M's director eventually signs on, despite his reservations.

When a dispute arises over a regularization invoice and the quality of services rendered, cooperation breaks down and the parties go to court

Enterprise court decision

The court followed real estate broker M.'s reasoning and declared several key clauses in the contract null and void. The court's reasoning proceeded in two steps.

Step 1: Determination of an apparent imbalance

The court first turns to the question whether the legislation on unfair terms is applicable. To do so, there must be a "manifest imbalance" between the rights and obligations of the parties. The court can rule on the illegality of certain clauses only if it first determines that there was an imbalance of power when the contract was concluded.

The court found that this was clearly the case here for the following reasons:

• Experience and specialization: F was an established firm with 12 years of experience and a unique concept, while M was a "young real estate firm" that had only been around for a year.
• An accession contract: The contract had been drafted by F and M, despite attempts at negotiation, had had to swallow most of the terms. It was a classic example of a contract where the weaker party has little to no input.
• Pressure during negotiations: F was already on the job and had access to all of M's communication channels even before the contract was signed. M thus negotiated under the threat that F would pull the plug and charge the costs already incurred (at a higher rate).
• Economic imbalance: The contract required M to sell a minimum of 60 properties per year, while F itself did not guarantee any results.

Because there was a clear disparity, the court could substantively review the contract clauses.

Step 2: Assessment of unfair clauses.

Because there was an imbalance, the court was able to test the specific clauses against the law on unfair B2B clauses. The following clauses were found to be unfair and void:

1. The termination fee: If M wanted to terminate the contract, it had to pay a fee equal to the sales F had made over the previous 12 months. F, on the other hand, could terminate with only a notice period, without having to pay any fee. This created an obvious imbalance. M was trapped in the contract, while F had complete freedom.
2. The definition of "serious error": The contract specifically enumerated which of M's errors were considered "serious," leaving the court no margin of appreciation. For F, by contrast, the definition was vague and general ("failure to deliver within a reasonable time"). This gave F a much stronger position.
3. The compensation for fault: A serious error by M required compensation of a full year's salary in commissions. The court ruled that this amount was "manifestly excessive" in relation to the potential damages F would suffer. F had not promised exclusivity and, as an industry specialist, could compensate for lost sales relatively quickly. The clause was on the "gray list" of clauses presumed to be illegal, and F could not rebut that presumption.

Legal analysis and interpretation

This verdict is a textbook example of the application of the B2B law of April 4, 2019, which has introduced articles VI.91/2 to VI.91/6 in the Code of Economic Law . The essence of this legislation is that while freedom of contract remains the principle, this freedom is capped when abuse of dominance occurs.

The ruling confirms a crucial "gateway condition": for a court to rule on the illegality of a clause, it must first establish an actual imbalance between the contracting parties at the time of contracting. This imbalance need not necessarily be an economic dependency; it can also result from a knowledge advantage, a unique product offering or, as here, the imposition of an accession contract.

Furthermore, the judgment shows that judges use the "normal" rules of contract law (suppletive law) as a point of reference. The further a clause deviates from what is legally provided for without a specific agreement (e.g., the ability to terminate an open-ended contract with a reasonable period of time), the more quickly it can be considered unreasonable.

What this specifically means

For the entrepreneur in a weaker position:

• You are not powerless: Even if you have signed a contract, manifestly unreasonable clauses can later be voided.
• Document everything: Keep emails or other communications showing that you tried to negotiate certain clauses but were not heard. This can help prove the unequal dominance later.
• Get advice: Seek legal advice not only when there is a dispute, but ideally before you sign an important contract.

For the entrepreneur who drafts standard contracts:

• One-sidedness is risky: Excessively one-sided contracts, especially regarding termination and damages, are legally vulnerable.
• Strive for balance: Provide some reciprocity in your clauses. If you provide high damages for the other party, it is reasonable to also provide a penalty for your own default.
• Be clear and transparent: Unclear or difficult to understand clauses may work to your disadvantage in assessing their legality.

Frequently asked questions (FAQ)

What if I didn't get to negotiate at all and just had to sign the contract?
That may just strengthen your position. The fact that there was no negotiation possible is a strong argument to show that it was an accession contract, which is an important element in the assessment of the power imbalance.

Can my entire B2B contract be voided?
In principle, no. The law states that only the unlawful clauses are void. The rest of the contract remains valid, insofar as it can survive without the deleted clauses.

Does this protection apply to all contracts between companies?
Yes, the law will apply to all agreements concluded between companies after 1 December 2020. However, the crucial step is always to prove the imbalance and illegality of a specific clause.

Conclusion

This judgment illustrates that the principle "a contract is a contract" is not absolute in B2B relationships in Belgium. The legislator has created a safety net to protect the weaker contracting party from abuse. Entrepreneurs faced with strangulation contracts do have means to defend themselves.