The long-awaited proposal regarding Book 7 of the new Civil Code was submitted to Parliament on 16 April. Book 7 deals with "special contracts" such as sale, lease and service agreements (amongst which construction agreements).
What is Book 7?
Book 7 follows Book 5 on general contract law and contains specific rules relating to various special contracts.
Special contract law sometimes has a supporting function in the sense that, if it concerns a special contract, one can use a legal framework adapted to that special contract in order to avoid possible unfair consequences should only general contract law apply.
Special contract law may also have a protective function, protecting either the weaker party in the special contract or the public interest.
Finally, special contract law aims to make things easier for contracting parties by providing them a legal framework regarding their special contract so they do not have to stipulate everything in their contract.
The provisions of Book 7 are in principle of supplementary law so that, unless otherwise provided, parties can deviate therefrom.
Main points
Book 7 focuses on Titles VI to VIII, X to XIII and XV of Book III of the old Civil Code. These provisions still date from the Civil Code of 1804 but have stood the test of time fairly well. However, there have been changes, for example, in tenancy law (whereby commercial lease, residential lease and farm lease now fall within the competence of the regions) and in sales law (which, for example, has been supplemented by rules on sales to consumers pursuant to EU directives).
A reform was nevertheless imminent, also because of the reform of general contract law (Book 5 of the Civil Code).
The authors of the proposal stress out that while the draft text is innovative, it does not fundamentally change special contract law. The innovations are indeed largely of a formal nature. In general, the reform is structured around four key elements.
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Simplification
The authors started from the principle of "economy of law". The draft text deletes a large number of legal provisions because they are an application of general contract law (Book 5 of the Civil Code). Similarly, rules on consumer sales have been greatly simplified since these rules are often no more than the application of general contract law principles.
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Restructuring
The old rules on construction agreements (aannemingscontract/contrat d’entreprise), custody (bewaargeving/dépôt) and mandate (lastgeving/mandat) were restructured to subject them to a common regime. According to the authors, these service contracts are indeed largely subject to the same rules. With regard to mandate, it was possible to delete some provisions since several aspects are also regulated in Article 1.8 of Book 1. However, Article 1.8 does not regulate all aspects regarding mandate, so that Book 7 also contains a chapter on mandate.
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Coherence between different special contracts
The proposed texts seek coherence between the various special contracts. For example, the commitment to conform delivery of a good appears in sale, lease and service contracts. The authors have tried to harmonise the legal texts as far as possible, taking into account the specificities of each contract.
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Comparative law perspective
Certain texts were adapted to consider the national law of neighbouring countries or international legislation. For example, in line with the Vienna Convention on Contracts for the International Sale of Goods and the consumer sales law regime, the proposal merges the obligation to conform delivery of a good with the obligation to protect against hidden defects.
Structure of Book 7
The Book 7 proposal contains seven titles:
- Title 1 concerns the in principle complementary nature of the new provisions and the definitions applicable to the book.
- Title 2 deals with sale (koop/vente) and exchange (ruil/échange).
- Title 3 deals with contracts of use (gebruikscontracten/contrats d’usage) (e.g. lease law) to the extent that it is still a federal competence, in particular common lease law including the lease of movable property and lease of office space. In addition, this Title deals with loan for use (bruikleen/prêt à usage).
- Title 4 deals with service agreements (dienstencontracten/contracts de service).
- Title 5 was reserved for the loan of “fungible property” (lening van een vervangbaar goed/le prêt relatif à un bien fongible) but this is not regulated in this bill. It was delegated to a new ad-hoc commission.
- Title 6 contains the rules specific to contracts of chance (kanscontracten/ contrats aléatoires).
- Finally, there is Title 7 on contracts involving litigation. This Title brings together both the sequester and settlement agreement.
Entry into force
The law inserting Book 7 in the Civil Code enters into force the first day of the twelfth month after its publication (at least according to the proposal). So if it were published in January 2025, Book 7 would come into force on 1 January 2026.
In the upcoming weeks our real estate team will analyse more in detail the different relevant titles of the proposal from a real estate perspective.
Lien Bellinck
Julien Lecler
