After the adoption of Book 5 (law of obligations) in 2022 and Book 6 (law of torts) in 2024, the year 2025 should see the adoption of the Book 7 of the new Civil Code. Indeed, a new bill, reworked on the basis of the public consultation organised in recent months, was tabled in the House of Representatives on February 20. It has since been sent to the Council of State for consultative opinion.
Our partners Paul Alain Foriers and Rafaël Jafferali have both been active in the Commission of reform of contract law responsible for drafting this bill, respectively as co-President and member of the Commission.
Book 7 is devoted to the subject of specific contracts, and in particular to contracts of sale, lease, hire of work (including construction contracts), agency, deposit and of settlement, as well as loans for use and certain random contracts. It does not, however, cover loans relating to fungible property and individual guarantees, which will be the subject of a separate bill to be submitted by another commission.
The draft reform is structured around 4 guidelines: (1) simplification, (2) restructuring, (3) coherence between the various specific contracts and (4) comparative perspective.
Three crucial changes brought about by Book 7 are outlined below.
1. A unified contract for services
In the bill inserting Book 7 in the new Civil Code, contracts for the hire of work (“contrat d’entreprise”, “aannemingscontract”), deposit and agency are brought together under the single concept of contract for services to subject them to a common regime. Though this entails an important restructuring of the regime applicable to these contracts, it does not lead to significant substantial changes with regard to the specific rules applicable to these contracts.
Specific rules are foreseen for construction contracts as well as for agency contracts to account for their intuitu personae character. For the rest, there is one unified set of rules applicable to all service contracts.
2. A unified obligation to deliver a conforming good
In the context of the contract of sale, the bill merges the obligation to deliver a conforming good with the guarantee against hidden defects (“garantie des vices cachés”, “vrijwaring voor verborgen gebreken”). A hidden defect will now be considered as a simple defect of conformity. The specific remedies foreseen for hidden defects, which derogated from the normally applicable rules, have also been abandoned.
This represents a major simplification, since the obligation to deliver goods in conformity and the guarantee against hidden defects were previously subject to distinct conditions of application, penalties, time limits and rules of exemption. The respective scope of application of these two regimes was often debated.
In addition to the objective of simplification, this change has been made to bring Belgian law into line with that of neighbouring countries, as well as with the consumer sales regime and the Vienna Convention on the International Sale of Goods. It is an important step towards modernisation of Belgian specific contracts’ law.
3. Disappearance of the presumption of knowledge of the hidden defect by the specialised seller
Under the old Civil Code, in sales contracts, the specialised seller is required to deliver a product free from any hidden defects and must undertake all necessary measures to detect any such defects. In practice, this provision all but prevents the inclusion in a sales contract of a clause exempting the seller from liability for hidden defects, and the resulting framework is particularly stringent.
Indeed, case law had upheld the existence of a presumption of knowledge by the specialised seller of the hidden defect. This presumption, applicable both to the manufacturer and to the supplier of the goods, forced them to prove that it was absolutely impossible for them to have detected the hidden defect, with the probative difficulties that it entailed. Furthermore, the seller is deemed to be specialised if it can be demonstrated that they are specialised in the field of the sale in question and have the relevant technical skills.
The bill abandons the latter provision in favour of a system in which it will be possible for the specialised seller to contractually exonerate themselves from their obligation to deliver a conforming good.
However, this does not mean that the buyer will be entirely deprived of all protection. On the one hand, consumers remain protected by the provisions prohibiting unfair contract terms, which forbid the inclusion of clauses infringing the buyer’s legal protection in terms of conformity. This is expressly stated in the article 7.2.37 of the bill, which provides that “[i]n the case of a sale by a business to a consumer, this section is imperative in favour of the consumer”. On the other hand, even in the case of a sale by a business to a business, a clause which would render the sales contract devoid of substance would be null and void, pursuant to article 5.89 of the Civil Code.
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The changes outlined above, while not exhaustive, provide a clear indication of the intention to simplify and strengthen the coherence of Belgian law for specific contracts. This reform represents a significant step towards modernising its legal framework and notably, aligning it with international standards. As the bill moves forward, the next steps now lie with the Council of State and Parliament. The impact of these changes, if enacted, will be far-reaching. This is undoubtedly a development worth following closely as it unfolds.
