On 1 February 2024, Book 6 of the New Civil Code was approved by parliament. This new book reforms Belgian extra-contractual liability law. The increase of the liability of 'auxiliary persons', such as directors of companies and associations, subcontractors and employees, is particularly striking. For these individuals, it is crucial to proactively take measures to protect against potential future claims that may be brought against them.
The new rules have been in effect since 1 January 2025. The article below details their impact over time, discusses practical consequences, and proposes measures to contain these effects.
An 'auxiliary person' (in current practice called an 'execution agent') is a natural or legal person who is entrusted by the debtor of a contractual obligation with the full or partial performance of that obligation, regardless of whether he performs this obligation on his own behalf and in his own name, or on behalf and/or in the name of the debtor.
Directors of companies and associations, subcontractors, but also employees are 'auxiliary persons'.
In the following, 'principal' refers to the person for whom the auxiliary person works, and the contracting party of the 'principal' is referred to as 'co-contractor', with whom the auxiliary person therefore has no direct contractual relationship.
Up to and including 31 December 2024, the auxiliary person ('execution agent') had an elaborate protection vis-à-vis the co-contractor of his principal: as a rule, the co-contractor could not hold the auxiliary person accountable for the latter's defective performance of the agreement between the principal and its main co-contractor. This was established case law (of Belgium’s highest civil court) and is in practice referred to as the 'quasi-immunity of the auxiliary person/execution agent'.
The auxiliary persons were therefore extensively protected against non-contractual claims by the contracting parties of their principal pursuant to the wrong, late or non-performance of the principal's contractual obligations.
Under previous law, if the plasterer had carried out its plastering work completely incorrectly, the co-contractor could only turn to his main contractor (with whom he has an agreement) for compensation and could not hold the plasterer liable for damage resulting from this fault.
The customer of a company whose directors refused to perform a contractual obligation of the company could not hold the directors personally liable for the damage resulting from this refusal.
An employer's customer could not hold the former’s employee liable for the damage he had suffered as a result of an employee's fault in the performance of his employment contract.
The principal of which the CFO is a management company could not turn to the natural person behind the management company for an error made by the natural person in the performance of the service agreement.
The only exception to this immunity under previous law was that auxiliary persons could be held liable if the fault attributed to them constituted a criminal offence (e.g. involuntary assault and battery, bribery, abuse of trust, forgery, fraud) or if this fault related not only to the contractual obligation, but also to the general duty of care incumbent on them.
In addition, that fault must have caused damage that was not solely attributable to the poor performance of the main contract, meaning, in practice, only in very exceptional circumstances such event gave rise to liability on the part of the auxiliary person.
The new Civil Code[1] puts an end to the quasi-immunity of the auxiliary person:
'Unless otherwise provided by law or by contract, the provisions of law on non-contractual liability shall apply between the damaged party and the auxiliary person of his or her co-contractors.'
On the basis of the aforementioned article, an auxiliary person can henceforth be held directly (non-contractually) liable by the co-contractor of his principal.
First and foremost, of course, it must still be proven that the auxiliary person himself has actually committed a foul that has caused damage to the principal's co-contractor.
It is also important to note that the provisions of Book 6 are, in principle, of supplementary law: the contracting parties can therefore deviate from them contractually, for example by stipulating that a co-contracting party shall refrain from bringing non-contractual liability claims against the auxiliary persons of its contractual partner (i.e. the principal).
Moreover, the provisions of Book 6 are without prejudice to other legislation that regulates the non-contractual liability of certain actors. For example, employees will also be protected in the new situation by Article 18 of the Employment Contracts Law, meaning that also in the future, they can only be held liable by third parties, including their employer's co-contractor, for gross faults or repeatedly occurring minor faults. This is evident from various passages in the parliamentary preparations.
The foregoing applies in a similar way to the limitations of liability laid down in the Code of Companies and Associations[2] (CCA) with regard to directors' liability. This means that directors can still invoke the restrictions provided for in the CCA[3] for errors committed in the performance of their mandate as directors.
In our opinion, however, directors can also be held liable on non-contractual grounds on the basis of Book 6, without being able to invoke the limitations of Article 2:57 of the CCA, in the event that the errors they allegedly have made, have nothing to do with the exercise of their directorship mandate. After all, such instances do not concern 'directors' liability'.
The new Civil Code[4] also provides that the auxiliary person “may invoke the same means of defence as" the defences that his principal can invoke against his co-contracting party on the basis of the latter’s (main) agreement with the principal. Limitations of liability stipulated by the principal in the (main) agreement with the co-contracting party will therefore apply to claims brought by the co-contracting party against the auxiliary person.
The same article also provides that the auxiliary person “may also invoke [against the co-contractor] the means of defence which he himself may invoke in this regard against his [own principal]” on the basis of their contract, which thus acquires third-party operation (‘derdenwerking’). Limitations of liability stipulated by the auxiliary person in his contract with his principal will therefore apply to claims brought by the co-contracting party against the auxiliary person.
Auxiliary persons may also make use of defences arising from the legislation on special contracts (e.g. the rules on purchase and sale, rent, deposit, hotel contracts, etc.), including the limitation rules applicable to the contract.
It is important to note that the Belgian Civil Code[5] stipulates that the possibility of invoking the aforementioned defences never applies to damage resulting from (i) a violation of the physical or psychological integrity of the injured co-contracting party of his principal or (ii) a fault committed by the auxiliary person with the intention of causing damage.
The new rules have entered into force on 1 January 2025.
The law introducing the new Book 6 explicitly stipulates that the new rules only apply to facts that occur after the law enters into force.
Thus, if the harmful event has occurred prior to 1 January 2025, the auxiliary person will still be able to benefit from quasi-immunity, even if the claim for damages is brought to court after the entry into force of the new rules.
Conversely, if the harmful event occurs on or after 1 January 2025, the auxiliary person will no longer be able to benefit from quasi-immunity, even if his contractual relationship predates the entry into force of the new rules. In this way, the new rules also have an impact on the performance of existing contracts.
The foregoing makes it clear that immediate action is required to protect the auxiliary persons. The following measures can be considered:
It is also possible to discuss with your insurer the extent to which you or your auxiliary persons are protected against such claims on the basis of your current insurance policies. If necessary, the coverages should be extended to include these cases.
The above shows that the abolition of the quasi-immunity of the auxiliary person increases the liability risk of many actors in the business world (and beyond). After all, most of us qualify as 'auxiliary person' in one way or another relationship, be it in a director's mandate, as consultant, employee, subcontractor,...
Good contractual provisions, in combination with comprehensive insurance, can protect you against this to a large extent. It is therefore important to adapt yourself for this new reality as soon as possible by reviewing your commercial toolbox (customer contracts, consultancy agreement, general terms and conditions, etc.) and your insurance policies and amend them where necessary.
[1] Article 6.3, § 2
[2] Article 2:57
[3] Article 2:57
[4] Article 6.3, § 2
[5] Final sentence of Article 6.3, §1 in fine
[6] Article 2:57 of the CCA
