Protesting invoices and invoice conditions

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The obligation to protest an incorrect invoice is a consequence of the positive meaning attached to silence between traders. Silence means agreement. The basis for this evidential value with regard to commercial sale can be found in the former article 25, second paragraph, Commercial Code., now replaced by art. 1348 bis 6 4 Civil Code "An invoice accepted by a company constitutes evidence against the company". It is believed that this rule applies not only to buy-sell agreements, but also to other agreements. The acceptance of the invoice (whether implicitly or explicitly) thus provides legal proof of the existence of the agreement and the subject matter, as evidenced by the provisions of the invoice. Although this alleged acceptance can still be challenged, practice shows that such a defense often gives rise to difficulties. It is therefore better to prevent such a situation than to cure it and to let your opponent know or protest every irregularity from the start. Because you will have to bear the burden of proof of the protest, it is best to protest in writing, specifying your protest. Written is best registered (also electronically registered), at least fax. An e-mail with confirmation "read".

In other words, you describe the reasons for the protest. The outright refusal of an invoice could, however, be interpreted as a general protest against the existence of the agreement itself. But in the absence of specific protest, courts may be inclined to dismiss it. Otherwise, the temptation could exist to protest every invoice for no appreciable reason.

Moreover, this protest must be made in a timely manner. After all, in accordance with established case law, a late protest of an invoice, ie within a short period of time, will not be accepted. Although this short term cannot be described in more detail, and its interpretation is up to the sovereign appreciation of the court, you must ensure that this is done with the necessary speed (preferably within one month at the latest). A dispute can possibly be avoided by an adequate and efficient attitude. Good administration is therefore essential.

However, this acceptance-protest interaction already occurs from the first contacts. A consumer is automatically protected by the law, but for a trader it is assumed that he should not be protected against any ignorance or weakness in the economic balance of power. A starting company will often be happy to carry out assignments for a large company, but this usually does not allow much room for discussion. And the larger this company is, the stricter its conditions, which are often expressed in several pages of legal conditions. You will not have the opportunity to comment quietly. From 1.12.2020 you will be able to fall back on art. VI 91/1 to /10 economic law code for protection against certain enforced clauses. The general terms and conditions also act as an agreement if they have not been expressly contested. In the initial phase, these are not tangible, but when a conflict arises, and at some point they refuse to pay, your own invoice conditions will no longer play a role. And when your company has to struggle through a difficult phase, it will often be the death knell, which can lead to bankruptcy (without reducing the possible possibility of invoking the legislation of judicial reorganization.. So it comes down to not give rise to a tacit acceptance in that initial phase. So please read this very carefully, and do not hesitate to ask authorized persons if you have any questions about their scope. The firm's decades of experience about everything that can go wrong is certainly help in this regard and is certainly not insignificant know-how in this.

When your client is a strong foreign company, that vigilance requires even more "upgrade". There reference is made to conflict settlements, competent Courts and applicable laws, now increasingly Arbitration. Be professional in this, and don't let this force you on. A professional company is prepared for all eventualities, including conflicts, and these can imply a major financial loss if all eventualities are not checked in advance. Here too you can receive written advice, and everything can be thoroughly discussed, so that you can sign your contracts with peace of mind.

Now that society consists of a sequence of legal events (every act that is performed has a legal consequence), we are also happy to advise you on the decision(s) you have taken or to be made. Even in such a phase we will always try to offer you a suitable solution in the most effective way.