Contracting online – a review of recent Dutch cases

10 May 2010

Huub de Jong, Chris Erents

In the last two years, Dutch courts have delivered numerous judgments about contracting online and interpreting the EU E-Commerce and Distance Selling Directives.  Here we review the decisions and give an impression of the Dutch courts’ approach to e-commerce legislation.

Offer on an auction site

The Den Bosch Court of Appeal examined whether a particular offer in an eBay advertisement qualified as a sufficiently determined offer or merely as an invitation to enter into negotiations. In addition, a question arose over whether there was consensus between the parties on the content of their agreement at the moment a bid was submitted.

Exco, who offered Jaguar/Daimler engines via eBay, received a bid for an engine. On receiving the bid Exco informed the bidder by email that the shipping costs would be EUR 600 and that an old engine had to be returned. The bidder did not accept these extra conditions.

The court of appeal ruled that the extra conditions amounted to a unilateral change made after the parties had reached agreement and therefore the buyer was not required to accept them. The agreement was therefore already concluded at the moment the visitor submitted its bid on eBay.

Case reference: Court of Appeal Den Bosch 14 July 2008, LJN BE0004.

Applicability of General Terms and Conditions

There have been several decisions which confirm that it is not sufficient to refer to general terms and conditions that can be found on the internet where agreements are not concluded electronically. The Dutch Civil Code allows online traders to rely on this only when the agreement itself is concluded electronically. Many companies still struggle with this limitation and try to rely solely on publication of their general terms and conditions on their websites, which is not sufficient.

If an agreement is concluded electronically, the general terms and conditions can, under certain conditions, be provided electronically. A Zutphen District Court ruled that a general reference to a website where the general terms and conditions could be found was not enough. In this case, the reference was as follows: “The general terms and conditions of Searchfactory apply to this offer, which general terms and conditions have been filed with the Chamber of Commerce in Amsterdam. The general terms and conditions can be downloaded in pdf format on www.searchfactory.nl”.

Referring to the Parliamentary debates that led up to the Dutch implementation of the e-Commerce Directive, the court ruled that the seller should use a hyperlink to refer to its general terms and conditions that is both easy to find and recognisable as a hyperlink.

Case references: Judgments by the District Court Utrecht 23 July 2008, LJN BF0016, District Court Zwolle 14 January 2009, LJN BI3429, District Court Maastricht (cantonal section) 29 July 2009, LJN BJ4271, District Court Roermond (cantonal section) 11 August 2009, LJN BJ5160, District Court Zutphen 19 August 2009, LJN BJ5577.

Payment method surcharging

Businesses that sell goods and services online sometimes charge different surcharges depending on the method of payment selected by their customers. A district court has ruled that charging additional costs to a customer, because he or she decides to pay online instead of by direct debit is illegal. The judge also ruled that a clause in a set of general terms and conditions which purports to levy such extra charges would be unreasonably onerous.

Case reference: Judgment by the district court Haarlem (cantonal section) 23 July 2009, LJN BJ4855.

Online travel agreement

Travel agreements have a unique character. For example, the right of cancellation, which was introduced into Dutch law as part of implementing the Distance Selling Directive, does not apply in the same way to travel agreements. The Dutch Civil Code gives customers the right to cancel travel agreements at any time with immediate effect, although if the cancellation is made due to circumstances attributable to the customer, the seller has the right to charge compensation. A consumer cancelled his travel agreement three minutes after concluding it online and was faced with these consequences. A district court could not find a reason to deviate from the requirements of the agreed market standard ANVR-travel conditions and ruled that cancellation costs could be validly charged in accordance with those conditions.

In another online travel dispute, heard by the Haarlem District Court, a claimant booked a business class journey on Alitalia’s website. The subsequent email confirmation mentioned that part of the journey would be by way of an economy class ticket. Despite multiple requests by the claimant, Alitalia refused to correct the error causing the claimant – under protest – to pay extra for a full business class ticket.

The court rejected Alitalia’s defence that, pursuant to Alitalia’s general terms and conditions of sale, the agreement is concluded when the ticket is issued. The relevant term of the contract only indicated that type of ticket issued could be treated as evidence. However, this did not prevent a customer from providing proof to the contrary, as it had done in this case. Alitalia was therefore ordered to return to the customer the additional payments the customer had been forced to make.

Case references: Judgments by the Arnhem District Court (cantonal section) 4 July 2008, LJN BD6324 and the Haarlem District Court (cantonal section) 17 September 2008, LJN BF5730.

Delivery of goods ordered over the internet

The district court in Alkmaar considered who should pay for failed delivery of goods ordered over the internet. After two attempts to deliver the goods at the buyer’s house, the package was sent to the post office, but never collected by the buyer. The court rejected as irrelevant the buyer’s appeal to its right to return the goods because it was not the defendant but the postal service which eventually returned the goods to the seller. The court rejected the buyer’s defence that the goods were never in her hands and that therefore she should not be obliged to pay. This outcome is unsurprising in view of the fact that the buyer acknowledged that she did not collect the goods from the post office, because she could no longer afford them. The case is therefore a clear example of creditor’s default.

Case references: Judgment by the district court Alkmaar (cantonal section) 6 October 2008, LJN BG0902.