Major changes in Belgian Procedural Law
The notice of default, sent by a creditor's lawyer, will henceforth have an interrupting effect on the statute of limitations.
1. Why this new law on the notice of default ?
In the past, only a writ of summons to oppose in court sent by a bailiff could be effective to interrupt the statute of limitations. The notice of default sent by a creditor’s lawyer to the debtor had no interruptive effect on the limitation period. The creditors were compelled to call on the bailiff’s service. This last one had no other means than delivering a summons in court in order to make the debtor appear in court. The purpose was to interrupt the period of limitation relating to his claim.
The case often occurs that when an unpaid creditor sends a notice of default with the aim to be paid, the debtor is hoping to reach the limitation period, knowing that it can take a long time leading to a solution.
As a result, the creditor’s claim was needlessly brought to court in order to obtain a judicial decision which uselessly overburdens the courts and implies considerable costs for the creditor. In addition, the creditor had no guarantees whatsoever to be paid.
2. Strict requirements and formalism
Several strict requirements must be satisfied for the notice of default, sent by a lawyer, to have an interruptive effect :
- The notice of default must be sent to the debtor’s domicile, residence, or the registered office (in case the debtor is a company) by registered letter with confirmation of receipt. If the debtor’s residence is known by the creditor, a copy must also be sent to his residence.
- Some compulsory statements and information required by law must be explicitly and fully mentioned on the notice of default.
3. Consequences
The statute of limitations is interrupted as of the time of sending a formal notice by registered mail against acknowledgement of receipt. From the date of the formal notice, a new term of one year starts, but the claim cannot be time-barred before the end of the original statute of limitations. However, if the original statute of limitations is less than one year, the duration of the prolongation is the same as the original statute of limitations.
