Unfair Clauses in B2C and B2B Contracts: Be Aware of Different Sanctions

Contract Management Practices Update in Belgian Law in 2025

In recent years, there has been a wave of new legislation impacting contracts and contractual terms. The Belgian legislator is gradually adopting the different Books of our new Belgian Civil Code. Last February, a new proposal for Book VII on special contracts, including sale and loan agreements was submitted. Additionally, the Belgian Code of Economic Law has been updated several times, impacting the drafting of contracts and of contractual terms, not only between companies but also with consumers.

In this series of alerts throughout 2025, we aim to provide guidance on drafting and reviewing standard contracts and contractual terms.

The first alert emphasizes the importance of drafting fair contract clauses. We highlight that if clauses are considered unfair, the sanctions differ depending on whether the clause applies in a B2B (business-to-business) vs. a B2C (business-to-consumer) context.

Alert 1: Unfair Clauses in B2C and B2B Contracts: Be Aware of Different Sanctions.

When drafting contracts and contractual terms, there is a duty to maintain a balance between the rights and duties of the parties. Clauses that do not maintain this balance may be unfair.

In a B2C-context, the Belgian Code of Economic Law (“CEL”) lists unfair clauses that cannot be imposed on consumers (Article VI.83 CEL). If a clause is not listed, the judge can evaluate its validity based on the general definition of an unfair clause (Article I.8, 22° CEL). 

In a B2B-context, contractual terms creating a manifest imbalance between undertakings are unfair and should be null and void. The CEL includes a list of so-called “black” clauses which are considered unfair and prohibited as such in a B2B context, and a list of “grey” clauses presumed unfair, but for which evidence can be submitted to prove the contrary (Articles VI.91/3, VI.91/4 and VI.91/5 CEL).

In a B2C and a B2B-context, if a clause is unfair, the sanction is typically the nullity of the clause and not the entire contract (Article VI.84 CEL for B2C and Article VI.91/6 CEL for B2B). However, if the contract cannot exist without the unfair clause, the whole contract will be null.

If clauses are unfair, the sanctions differ depending on whether the clause applies in a B2B (business-to-business) vs. a B2C (business-to-consumer) context. We will give the specific example of an unfair indemnity clause.

1. B2C Contracts

   If a clause in a B2C contract is declared unfair and null, the judge cannot replace it with a fair wording. For example, if an indemnity clause sets a fixed indemnity at 30% of the purchase price, a judge cannot reduce it to 10% to make it fair.

   In such cases, the question is whether the entity can still claim an indemnity through the “suppletive” rules of common law (i.e., via the default rules that would have applied if no indemnity clause had been included in the B2C contract). The European Court of Justice (ECJ) ruled in 2022^[1] that when an unfair clause is null, the undertaking cannot rely on national suppletive provisions to be compensated for its loss, unless nullifying the clause would invalidate the contract entirely, harming the consumer.

   In the Gupfinger^[2] case of 8 December 2022 and in subsequent judgments^[3], the ECJ confirmed this jurisprudence. In the Gupfinger case, the consumer unlawfully terminated the contract. The entity concerned could not apply the indemnity clause that was null nor the national suppletive provisions for compensation. Hence, no indemnity was due by the consumer.^[4]

   The ECJ’s rulings aims to protect consumers and prevent unfair terms from being applied maintaining their dissuasive effect.

2. B2B Contracts

   Article VI.91/6 CEL also provides for the nullity of unfair terms in B2B contracts. The CEL’s preparatory works suggest that the ECJ’s position in B2C contracts should not apply to B2B contracts and that “the court (…) must retain its discretion and decide to restore the balance of the contract in question, if a party so requests.”^[5]

   Even if the judge cannot replace an unfair clause in a B2B context, he should “restore the balance of the contract”. This indicates that the judge can still temper or partially nullify an unfair term if such decision does not interfere with the parties' common intention.^[6]In the example that was given above, the judge could thus apply an 10% indemnity and restore the balance of the B2B contract.^[7]

   The CEL’s preparatory works also state that “the nullity of a penalty clause found by the judge will result in the clause being set aside. However, the judge will always have the power to set the indemnity in accordance with common law.”^[8]This means that an entity can still claim an indemnity for its damage based on common law, i.e. by providing the necessary proof of its damage. Many contracts confirm this with a clause stating the fixed indemnity applies “regardless of the right of the party to claim its real damage”.

This distinction between B2C and B2B contracts regarding unfair terms reminds companies to carefully draft contracts and contractual terms, considering the nature of the counterparties (B2C or B2B).