Book 6 of the Civil Code: The End of Protection—Time for Action!

On January 1, 2025, “Book 6” of the new Civil Code will take effect. This part of Belgian law pertains to the *“non-contractual liability”* of both individuals and companies and generally governs liability for damages caused in the absence of a contractual relationship between the parties involved. This legislative change will have far-reaching consequences for corporate directors, subcontractors, employees, and other so-called “auxiliary persons.” Whereas there used to be strong protection against non-contractual liability, starting in 2025, these individuals may be held directly liable by third parties who have suffered damages. In this context, an “auxiliary person” is any person entrusted with the full or partial performance of a contract concluded between a principal and a contractor who is not themselves a party to that contract. This thus affects a wide range of categories of persons participating in economic life (such as subcontractors, corporate directors, etc.). Until now, these auxiliary persons have enjoyed extensive protection: except in *very exceptional cases* (for example, when the facts constitute a criminal offense), they cannot be held liable for damages caused by errors they commit in the course of their work. Starting in 2025, this protection will be lifted, and auxiliary persons may be held directly liable in tort. For directors, this means that a contractor or creditor of the company will, under certain conditions, be able to hold a director directly liable for damages suffered as a result of an error or negligence committed by that director in the performance of his or her duties. Fortunately, there are ways to limit this liability risk through contractual provisions. The new rules constitute “supplementary law,” which means you can limit or even exclude the liability of agents or directors in your contracts. It is therefore crucial to pay close attention to the liability provisions in the main agreement (between, for example, the company and its creditor) and in the agreement between the agent and its principal. In this way, contractual safeguards can be built in at various levels to minimize the agent’s non-contractual liability as much as possible. In addition, it is also essential to review current insurance policies and ensure that they provide adequate coverage against the new liability risks. Since these changes will also apply to existing contracts, it is advisable not only to anticipate them in new contracts but also to amend existing contracts wherever possible. We therefore recommend subjecting (existing) agreements and general terms and conditions to a thorough analysis and taking the necessary action in a timely manner to mitigate liability risks. Crauwels Advocaten would be happy to assist you in reviewing your agreements and implementing the necessary changes.