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b2b terms rundown 4 – Can an unfair clause be partially annulled?

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According to the new b2b law each unfair clause is prohibited and null and void. The contract remains binding to the parties if it can continue to exist without the unfair clauses.

This means that generally the contract continues to exist without the unfair clause. But what about the unfair clause itself? Can its annulment only be partial? Can a court carve out a clause only to the extent of what is unfair or must the clause be erased as a whole?

Some defend that in view of a deterring effect, unfair terms should be annulled as a whole (as in unfair b2c terms), but this does not seem to be the intention of the legislator and this sweeping effect could be easily circumvented in contract drafting, by breaking up a clause in numerous other clauses.

Therefore, as a rule, partial nullity should be preferred to overall nullity whenever possible. For the sake of clarity / security it can nevertheless be contemplated to specify, in a severability clause, that invalid clauses can be carved out or reduced instead of avoided as a whole.

A separate post will deal with the specific case of penalty clauses.

These short #b2btermsrundown posts randomly identify topics of the new b2b law.

Don't hesitate to reach out to Olivier Vanden Berghe should you have any questions.