Book 6 of the new Belgian Civil Code contains the rules on extra-contractual liability and abolishes the automatic quasi-immunity of the executive agent. This topic has already been discussed in our CLI of 14 May 2024. This amendment has important consequences for the liability of directors of legal entities.
As a reminder, a legal entity cannot itself perform legal acts. It must rely on representatives to carry out its obligations. In most cases, it is the directors who perform this function. They then act as executing agents.
For the time being, these administrators enjoy quasi-immunity. In other words, the creditors of legal entities cannot approach them directly when they make mistakes and cause damages.
From now on, it will be possible to bring an extra-contractual action against directors.
Article 6.3, §2 of the Civil Code nevertheless provides for certain defenses for the enforcement agent (except in the case of intentional error or if the administrator causes physical or mental harm to the creditor).
On the other hand, it is not clear whether, and to what extent, a director will be able to rely vis-à-vis third parties on a discharge granted to him at the annual general meeting for his acts as a director in order to contest a liability action brought against him.
In conclusion, this new Book 6 of the Civil Code opens the possibility for any contracting party or creditor of the legal entity to bring a liability action against directors. The risk of insolvency of the legal entity may thus pass to the directors. For example, in the event of bankruptcy, the creditor of the legal entity may apply directly to the director.
It is therefore important to pay attention to the liability provisions in the main contract entered into by a legal entity with a co-contractor. Article 6.1 of the Civil Code provides that these rules are suppletive laws. The parties may therefore choose to derogate from them contractually, by providing for limitations of liability in favor of the director.
Current agreements and general terms and conditions should therefore be adapted immediately. For more information on this subject, please contact Antoine DECLEVE.
