New provisions in the Civil Code significantly broaden extra-contractual liability.

On 1 January 2025, the new Book 6 of the Civil Code (hereinafter ‘CC’) will enter into force, introducing significant changes regarding extra-contractual liability. Former regulation The former regulation provided that parties entering into a contract had an implied intention to exclude extra-contractual liability. It was therefore forbidden to invoke extra-contractual liability against one's contracting party (with some exceptions). This was better known as the ‘prohibition of concurrent proceedings’ between contractual and extra-contractual liability. The extra-contractual liability of auxiliary persons of the co-contractor (see interpretation of this term below) was also excluded, or at least limited. Here people spoke of the ‘quasi-immunity of the executing agent’.

What will change with the entry into force of Book 6 of the Civil Code?

 

2.1 Liability is widened

Book 6 of the Civil Code now stipulates that non-contractual liability law also applies between co-contractors (deviation from current prohibition of concurrent proceedings) and in relation to auxiliary persons (deviation from quasi-immunity of the executive agent). The liability of contractors and their auxiliary agents is thus broadened, as they can now be held liable for full compensation by their co-contractor under the extra-contractual liability rules. However, the application of the extra-contractual liability rules can be limited or excluded. Parties may deviate from this by agreement (e.g. by contract, or by general terms and conditions, etc), as Book 6 of the Civil Code is of supplementary law.

2.2 Co-contractors but also auxiliary persons can be sued extra-contractually

The co-contracting party will be able to be directly held liable extra-contractually by its co-contractor for damaging acts (taking place after 1 January 2025). In such a case, the sued co-contractor will be able to rely on the arguments arising from the contract with the co-contractor (the main contract) as well as the law on special contracts and the special limitation rules applicable to the contract. The same applies to ‘auxiliary persons’. An auxiliary is a person who participates in the performance of his own co-contractor's obligations, such as, for example, employees, appointees, directors of legal entities, (independent) subcontractors, representatives, etc. With these new provisions, an aggrieved party will no longer be able to address only its co-contractor, but also its co-contractor's auxiliary person. The auxiliary persons will thus, in principle, be able to be held liable directly extra-contractually by the aggrieved party, with whom the auxiliary persons themselves do not have a contractual relationship, for damaging acts (taking place after 1 January 2025). An example: a subcontractor (= auxiliary), who commits an error in the performance of his contract with the main contractor (= subcontract), will now be able to be held liable directly by the creditor-injured party extra-contractually to provide full compensation. However, auxiliary persons can invoke the same defences as the contractor vis-à-vis the injured third party (including those arising from the main agreement), but also the defences arising from their own agreement with their contractor (the sub-agreement) and the defences arising from other legislation (such as, for example, Article 18 of the Employment Contracts Act, under which the employee is only liable in case of fraud, gross negligence or habitual slight negligence). Please note that these defences cannot be invoked for damages resulting from an impairment of physical or psychological integrity or as a result of an error committed with intent to cause damage.

2.3 Conclusion: provide additional contractual protection

The new Book 6 of the Civil Code thus entails broadened extra-contractual liability between co-contractors but also in respect of auxiliary persons of the co-contractors. To avoid exposure to such extended liability, you should provide for additional contractual protection. By inserting closing clauses in current and new contracts, parties can be covered as much as possible against unexpected liability claims. In a subsequent post, we will elaborate on the impact of Book 6 of the Civil Code on directors' liability. Questions or doubts, need help drafting additional contractual provisions or would you still like to have your contracts reread just to be sure? Get in touch. Our lawyers, Louise Denayer and Cato Van Straeten, will be happy to help you.