How does the battle of forms work in practice under Dutch law?

Dutch term: Battle of forms (praktijk) | Legal basis: Article 6:225(3) BW

The battle of forms under article 6:225(3) of the Dutch Civil Code arises when both parties refer to their own general terms and conditions during the formation of a contract. The Dutch 'first shot' rule provides that the terms referred to first prevail, unless the accepting party explicitly rejects them in its acceptance. Merely referring to one's own terms in the acceptance is not sufficient to reject the first party's terms.

In practice, the battle of forms plays out in the exchange of purchase orders and order confirmations. If the buyer sends a purchase order referencing its purchase conditions, and the seller responds with an order confirmation referencing its sales conditions without explicitly rejecting the buyer's conditions, the buyer's conditions apply. This is the opposite of the 'last shot' rule applied in some common-law jurisdictions and differs from the 'knock-out' rule under the CISG (where conflicting terms cancel each other out and the gap is filled by law).

Why it matters for international businesses

For international businesses trading with Dutch counterparties, the practical recommendation is clear: if you receive an offer or order that references the other party's general terms, and you want your own terms to apply, you must explicitly reject the other party's terms in your response. A standard formula is: 'We hereby explicitly reject the applicability of your general terms and conditions. Our general terms and conditions [attached/available at URL] apply to this transaction.' MAAK Advocaten advises on general terms strategy and drafts terms that are optimised for the Dutch battle of forms rules.