Last updated: 8 June 2017
Do you ever wonder what “general terms and conditions” are useful for? Well, such a contractual document is useful when the parties to a contract do not have the time to sign a proper sale-purchase contract. However, given that “good agreements make good friends”, it is preferable to perform a sale under a predefined general framework.
In such a situation, the "General terms and conditions", which are widely used in other European countries, may represent a solution, although not ideal from a legal perspective.
GENERAL TERMS AND CONDITIONS IN BRIEF
From a legal point of view, general terms and conditions are standard clauses, i.e. stipulations previously established by one of the parties (seller or buyer) to be used in a general and repeated manner, without having been negotiated with the other party.
From a practical perspective, general terms and conditions can be printed either on a page (to be submitted to the other party when it places or when it receives the order) or on the back of offers, invoices or other commercial documents.
Please note that, in the event of a conflict between negotiated clauses and the standard clauses of the general terms and conditions, the negotiated clauses will prevail.
If both parties use general terms and conditions and if they fail to reach agreement as to the applicability of these conditions, the contract shall be deemed to have been concluded on the basis of the agreed terms and the common conditions of the parties (in terms of substance).
By way of exception from the above, the contract will not be deemed to have been concluded if one of the parties notifies the other party either before the conclusion of the contract or at a later date – but immediately - that it does not wish to conclude a contract.
Please note that the Romanian law provides that certain standard clauses, which create advantages for the proposing party, called "unusual clauses", must be expressly accepted in writing by the other party; otherwise, they are not applicable.
Unusual clauses are, for example: limitation of liability, the right to unilaterally terminate the contract, the right to suspend the performance of obligations, depriving the other party of certain rights or benefits, limitation of the right to raise defenses, tacit renewal of the contract, applicable law, arbitration clauses, and derogation from standards relating to the jurisdiction of courts.
Taking into account the elements above, in order to be applicable and effective, general terms and conditions must:
(i) Have been signed by the other party;
(ii) The unusual clauses they provide must have been expressly accepted, in writing, by the other party.
In practice, there are various opinions on how this acceptance of unusual clauses can be expressed.
In order to minimise risks, we prefer to recommend that the accepting party make a handwritten statement on the contractual document (“I expressly agree with the clause that provides…”) and sign next to this statement.
If general terms and conditions are not signed and/or if unusual clauses are not expressly accepted, the other party may claim that it has not accepted the general terms and conditions/unusual clauses and, thus, they are not enforceable against it. In such case, the general rules provided by the Civil Code apply.
Of course, the safest is to conclude a negotiated contract with your partners.