The Bill for Book 6 of the New Civil Code regarding extra-contractual liability (tort law), was approved on 1 February 2024.
When an auxiliary agent is hired to carry out obligations from a contract concluded between a principal and a performer, the “quasi-immunity of the performing agent” currently applies if the agent makes a mistake or fails to (fully) fulfill the terms of the contract.
The principal cannot invoke the auxiliary agent’s contractual liability, since there is no contractual relationship between the principal and the auxiliary agent. Extra-contractual liability can also only be claimed in the event of a criminal offence or a breach causing damage that goes beyond non-performance of the contract (as, for example, when a contractor causes damage on a construction site that has nothing to do with the work he has to carry out)..
These provisions could create unfair situations for the principal, particularly when the executing agent failed to honor the terms of his contract and the principal went bankrupt.
Book 6 of the New Civil Code should change things for the better in this regard since the principal shall from now on be entitled to directly sue the executing agent on the basis of the principles of extra-contractual liability in order to claim damages for non-fulfilment of the contract.
Insofar as these provisions are of a suppletive nature, the executing agent may be relieved of this liability by means of a disclaimer clause, either in the contract between the principal and the performer, or in the contract between the performer and the executing agent himself.
Liability can never be waived, however, in the case of damage resulting from physical or mental injury, or from a deliberate breach.
The new provisions will apply to all auxiliary agents: subcontractors, representatives, directors of companies, employees…. However, special provisions will continue to apply to certain categories of agents, such as Article 18 of the Law on employment contracts with regards to employees and the provisions of the Companies and Associations Code for directors.
Book 6 will come into force six months after the publication of the bill in the Belgian Official Journal, or most likely on 1 January 2025, and apply to disputes occurring after this date, even if they are governed by earlier contracts and/or general conditions.
It would therefore be opportune to adapt your current contracts and general terms and conditions to these new provisions. For further information on this subject, please contact Antoine DECLEVE.
