The new year marks an important turn for non-contractual liability law.
On Jan. 1, 2025, the familiar 6 articles of the (old) Belgian Civil Code regulating non-contractual liability law were replaced by a new Book 6 of the Civil Code with no fewer than 55 (!) new articles.
But still not quite....
The provisions of Book 6 of the Civil Code apply only to facts that can lead to liability and that occurred after the new provisions came into force, i.e., after Jan. 1, 2025.
These provisions do not apply to the future consequences of facts that occurred before the entry into force of the new provisions, that is, before January 1, 2025.
Liability claims brought after January 1, 2025, for harmful facts that occurred before January 1, 2025, will therefore continue to be governed by the familiar articles 1382-1383 et seq. of the (old) Civil Code.
Liability claims concerning harmful facts that occurred after January 1, 2025 will be governed by the new law.
The new provisions are not entirely new. They build on existing law and largely incorporate already existing case law.
However, there are also some novelties.
One adjustment that is seen as an important turnaround from the old law is the admission of the possibility for contracting parties to invoke both contractual and extra-contractual liability (Art. 6.3., § 1 CC) and the admission of the possibility for a contracting party to sue the auxiliary persons (executing agents) of the co-contractor on the grounds of extra-contractual liability (Art. 6.3., § 2 CC). In other words, the quasi-immunity of the executing agent is in the past tense.
It should be noted, however, that according to Article 6.1. CC, the provisions of Book 6 CC are of supplementary law unless it appears from their text or scope that they are, in whole or in part, of a mandatory or public policy nature. Article 6.3, § 1 and § 2 CC provide that the possibility contained therein only applies if “the law or the contract” does not provide otherwise.
Contractual deviation from Article 6.3, § 1 and § 2 CC is therefore possible.
Existing and future contracts should therefore be reviewed in the light of these provisions.
Questions about the application of the new regulation and its impact on contracts concluded or to be concluded by you?
Ariga will be pleased to assist you.