Background

Two years after the entry into force of Book 5 "Law of Obligations" and Book 1 "General Principles," Book 6 "Extra-Contractual Liability" of the Belgian Civil Code came into force on 1 January 2025. This reform, aims at making non-contractual liability more readable and understandable, has the merit of providing some clarifications and enshrining pre-existing case law standards into law. We focus below on the two most significant changes introduced by the new Book 6: the concurrence of contractual and extra-contractual liabilities and the end of the quasi-immunity of auxiliaries.

Concurrent liabilities in contract and tort

Before the adoption of Book 6, the prohibition of concurrent liabilities between contracting parties consistently barred the possibility of pursuing extra-contractual liability claims for damages arising from a breach of contract. Consequently, the main recourse available to parties in the event of contractual breaches was confined to contractual claims, while extra-contractual claims were considered more difficult to activate or, in most cases, impossible. This prevented for instance owners/principals from articulate a contractual and extracontractual ground for claims against a developer/contractor, based on factors such as the applicable statute of limitations.

Since 1 January 2025, concurrent contractual and extra-contractual liability has become the standard unless otherwise specified by law or contract. This change allows the claiming party to choose between seeking compensation based on contractual or extra-contractual liability for damages caused by a breach of contract, provided the conditions for these liability regimes are met (as the case may arise in a subsidiary order). The new framework however also permits defendants to use contractual liability limitations or other defenses in extra-contractual claims, with certain exceptions.

While concurrent liability is now the rule, parties can still explicitly exclude it in their contracts. Such exclusion is not possible for damages resulting from physical or psychological harm (which could for instance be the consequence of an environmental damage or structural misconception) or intentional misconduct, where extra-contractual claims remain possible. This confirms the trend, already visible in Book 5, to restrict liability exclusions in these contexts. Parties should therefore be extra careful, including in the context of SPA limitations or W&I discussions.

Key Takeaway: The new Article 6.3 of the Civil Code now allows the extra-contractual liability of parties to a contract to be invoked, broadening the potential claims between them. However, Article 6.3 is supplementary, and the parties may deviate from it in the contract to the extent permitted by law, with some important exceptions, relevant notably in the fields of construction and environment.

End of the quasi-immunity of the auxiliary

Before 1 January 2025, the quasi-immunity of auxiliaries, invoked by certain contracting parties (such as directors, subcontractors, independent suppliers, employees, etc.), served to protect them against claims, whether contractual or extra-contractual, from the creditor of their principal during the performance of their contractual obligations – except in exceptional circumstances, primarily in cases of criminal activity. This prevented for instance owners/principals to act against subcontractors in the context of a development project.

Since the entry into force of Book 6, auxiliaries no longer enjoy such quasi-immunity. The new Book 6 abolishes the principle of quasi-immunity, allowing a contracting party to hold the auxiliary of their co-contractor directly liable for errors in contract performance on an extra-contractual basis.

Regarding the defenses available to an auxiliary facing a non-contractual liability claim, Book 6 provides dual protection. The auxiliary can generally invoke contractual defenses from both (i) the contract between the auxiliary and their co-contractor (the auxiliary contractual relationship), and (ii) the contract between the original principal and the original co-contractor (provided the auxiliary is aware of its content), as well as defenses from all special laws applicable to these contracts. Additionally, it is possible to contractually exclude the non-contractual liability of the auxiliary in the contract between the contractor and the client.

However, if the auxiliary commits a fault either intentionally causing damage or causing damage resulting from physical or psychological harm, they cannot invoke the above-mentioned defenses. This confirms the same principle in the framework of the concurrent liabilities in contract and tort.

Key Takeaway: Auxiliaries' (directors, subcontractors, independent suppliers, employees, etc.) extra-contractual liability may now be invoked in some cases by the co-contractor of their principal. However, Article 6.3 is supplementary, and the parties can deviate from it in the main contract, with some important exceptions, relevant notably in the fields of construction and environment.

Transitory regime

As previously mentioned, Book 6 of the Civil Code entered into force on 1 January 2025. Therefore, all triggering acts that occurred after this date fall within its scope. The consequences of acts that occurred before the entry into force of Book 6 of the Civil Code are dealt with by the old regime, meaning that both regimes will still coexist for a certain period of time. Importantly, Book 6 may also be applicable in the context of preexisting contracts, even though the absence of exclusion clauses in these contracts (logically) has led to discussions in that respect.

Next steps

Depending on the circumstances, it is advisable for the parties to address these issues at a preliminary stage with their counterpart during contract negotiations, or to amend existing contracts and templates to accommodate such risks. If necessary, they can:

• Include a clause limiting or excluding, as far as possible, the extra-contractual liability of each party in the performance of contractual obligations; and/or
• To protect auxiliaries, include limitation of liability clauses or exoneration clauses.

We are here to help you navigate these changes. Please do not hesitate to contact us if you have any questions or would like to discuss how this may impact your business in the future.