The new book 6 of the Civil Code – General introduction

In recent years, the Belgian legislator has actively been updating and modernizing the Civil Code (Cc). The process began with a reform of the law of evidence with Book 8 (effective November 1, 2020), followed by the implementation of Book 5 on obligations, which applies from January 1, 2023. For contract law, Book 7 on Special Agreements, is on the way. These codes have primarily updated existing law and codified prevailing trends in case law.

A more significant reform will occur with Book 6 of the Civil Code regarding non-contractual liability, which text was recently published in the Belgian Official Gazette and will come into effect on January 1, 2025.

Was a new code needed in this legal domain?

This is of course the first question that comes to mind for many. The legislator had a noble goal in mind: to modernize the legislation, build in legal certainty and predictability, ensure better structure, and introduce innovations in areas where case law was uncertain or unclear.

A legitimate intention, as the existing non-contractual regime consisted of only a handful of legal provisions (articles 1382-1386bis of the old Civil Code), which meant that Belgian non-contractual liability law was primarily based on case law. This led to legal uncertainty, compounded by the fact that case law was unclear, divergent, and outdated on certain points.

 

Important innovation: the abolition of the quasi-immunity of the execution agent

An important innovation is the modified liability of the executing agent. An executing agent or auxiliary is a person through whom a contractor is replaced for the performance of a contractual obligation. Suppose you enter into an agreement with a contractor who relies on a self-employed electrician for the execution of electrical work. When damage occurs due to the electrician’s fault, the question arises to whom should the client direct their claims: against the contractor, the auxiliary (the electrician), or both?

Given the contractual relationship between the client and the contractor, the latter is liable for the fault committed by the executing agent. The electrician could only be held personally (extracontractual) liable by the client under extremely strict conditions. The first condition is that the fault must constitute a breach, not of a contractual obligation, but of the general duty of care. The second condition states that the damage caused by the act must differ from that which arises solely from the defective performance of the contract.

Due to the identification of the auxiliary electrician with their co-contractor (the contractor), the extracontractual liability claim of the principal creditor (the client) against the auxiliary was significantly limited. This was referred to as a ‘quasi-immunity’ of the executing agent.

In the new Book 6 of the Civil Code, this quasi-immunity of the executing agent is abolished. The client now has the option to seek compensation for the damage from both 1) their own contractual party and 2) the auxiliary engaged to perform the contract.

This new arrangement obviously has significant implications for company directors, employees, subcontractors, etc. Their protection in this regard is reduced. Nevertheless, it should also be noted that the new law specifies that this provision applies only when the law or the contract does not provide otherwise, allowing for important deviations.

 

 Other innovations

Furthermore, the legislator has amended the basic concepts of fault, damage, and causation, which are the building blocks for holding a person extracontractual liable. An article of the new Code is dedicated to restitution in kind as an alternative to compensation.

The rules apply to both natural persons and legal entities. For strict liability for defective goods (formerly article 1384, paragraph 1 of the Civil Code), the safety criterion is explicitly included in the law. The legislation on product liability has not changed but is fully integrated into the new Book 6 of the Civil Code.

This is just a glimpse of the new changes introduced by Book 6.

The new Code will apply to events occurring after its entry into force, i.e., January 1, 2025. This means that the new rules may apply to existing agreements. It is therefore advisable to have a review conducted of your existing contracts. For example, direct extracontractual claims against auxiliaries can be contractually limited or excluded (e.g., in the main contract or in general terms and conditions).

What all these changes concretely entail and what further steps your company can take to adapt to the legislative changes will be addressed in upcoming newsletters, ensuring you are fully up to date. Please feel free to contact us if you have any questions or need further advice.

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