Communication and acceptance of terms and conditions of sale: what are your obligations?

You’ve drawn up General Terms and Conditions of Sale, or had them drawn up, but you don’t know how or when to pass them on to your customers. This is not a question to be taken lightly. Too many professionals have GTCs that cannot be applied, and are therefore completely useless to them, because they have not been properly communicated to customers. The first paragraph of article 1119 of the French Civil Code stipulates that: “the general terms and conditions invoked by a party shall only have effect with regard to the other party if they have been brought to the latter’s knowledge and if the latter has accepted them”. The General Terms and Conditions of Sale are a contract; they cannot be applied to your customers by you alone. Your customers must have read and accepted your General Terms and Conditions of Sale before ordering from you. It is important to break down the two phases of this obligation:

• 1. Read our terms and conditions
• 2. Accept T&Cs

For example, a customer may sign that they have accepted the terms and conditions, but if you have never given them to them, and they are not available online, then they have not been able to read them, and the conditions have not been met. Similarly, a customer may have received the General Terms and Conditions, sent with the quotation for example, but if he does not certify that he has signed them, the conditions are not fulfilled. We recommend that our customers always attach their terms and conditions to the customer’s quotation or order form, and ensure that both are signed at the same time. There are a number of software programs available to automate this process, or online signature software, which enable you to quickly get your customers to sign your terms and conditions, and keep electronic proof of this signature.

An example from our practice

We drew up general terms and conditions for a customer specializing in home services. He forgot to communicate them and have them signed by a client in a hurry to set up the service. A dispute arose between the two parties, and the failure to communicate the GTCs put our client in a difficult position. The dispute is still ongoing.