Book 6 Belgian Civil Code adopted: new tort liability rules will apply as from 1 January 2025

On 2 February 2024, Book 6 of the Belgian Civil Code on extracontractual liability was adopted by the House of Representatives. It will be published in June 2024 and enter into force on 1 January 2025. While the main intention of the new Code is a codification of existing case-law on tort law, it also contains some novelties and puts an end to some controversies. Here are, in a nutshell the main points relevant for businesses.

• A fault leading to tort liability consists of the violation of a legal rule or of the general standard of care. The fault is assessed objectively, not subjectively (invincible error can however exonerate from liability). To judge whether the general standard of care was breached, the court may take into account, among other things, the foreseeability of the damage and (clarification that caused controversy) the extent of efforts and measures needed to prevent the damage (Art. 6.6).

• Legal entities are liable for the harmful consequences of faults committed by (members of their) governing bodies (whether governing in law or in fact), within the performance of their duties (Art. 6.14).

• For liability for defective goods, the safety criterion is used. A good is defective if "by any of its characteristics it does not provide the safety that one is entitled to expect in the given circumstances" (Art. 6.17). This rule now also applies to buildings (no longer a separate article).

• The conditio sine qua non rule to determine causation is confirmed, but in the case of simultaneous concurrent causes, it is corrected: "If a fact giving rise to liability is not a necessary condition for the damage for the sole reason that one or more other concurrent facts, separately or together, are a sufficient condition for the damage, it is nevertheless also a cause." (Art. 6.18 § 1).

• Exceptionally, there is no liability, despite causation, if the connection between the event giving rise to liability and the damage is so remote that it would be manifestly unreasonable to attribute the damage to the liable party, taking into account in particular the unlikely nature of the damage in the light of the normal consequences of the event and the fact that that this event did not contribute significantly to the occurrence of the damage. (Art. 6.18)

• Multiple liable parties for the same damage are liable in solidum (Art. 6.19). Joint and several liability for the same offence (Art. 50 Criminal Code) also becomes an in solidum liability.

• In case of uncertain causation there will be a partial compensation for the damage in proportion to the probability of the fault causing the damage  (Art. 6.22). This basically leads to the same result as the existing case-law granting compensation for the "loss of opportunity".

• An important new article deals with the case of uncertainty about who, among several persons/entities, caused the damage: if several potentially liable persons have created the risk of damage by similar facts, but the individual causal link cannot be established, each of them is liable, proportionally according to the probability of the causal link (Art. 6.23). This presumption of causal link can however be rebutted: any party that can prove that he did not cause the damage is not liable.

• The principle of full compensation is confirmed (Art. 6.30).

• Reasonable costs incurred to prevent (imminent) damage also constitute damage to be compensated, even if they were without result (Art. 6.28).

• The determination of damage to property is governed by Art. 6.26. No specific reduction of compensation is provided in case of obsolescence.

• Damage can be “patrimonial” (basically economic loss) or “extrapatrimonial” (basically non-economic loss). Extrapatrimonial damages can also be claimed by a legal entity if it is compatible with its nature (Art. 6.26).

• When the victim’s personality right or reputation is impaired, the intentional offender can also be ordered to remit the net profit realised (Art. 6.31).

• The benefits received by the injured party are only deducted from the damages if they would not have been granted without the event giving rise to liability and are intended to compensate the damage (6.35).

• An important novelty, putting an end to long-lasting case-law, is that under the new regime one can hold one’s contract party and its auxiliaries (those used to perform the contractual obligations, such as subcontractors) liable based on tort liability, provided the conditions thereto (such as an extracontractual fault) are fulfilled (Art. 6.3). This novelty will probably multiply claims and complexify proceedings but should however not cause a big change in outcome. Indeed, a contract party facing such tort claim can still raise the defences deriving from the contract, both under the law (such as statute of limitations) as under the contractual clauses (such as limitation of liability clauses). The auxiliary can also invoke such exceptions, deriving both from the main contract and from its own contract. These contractual exceptions are banned (only) in case of physical or psychological harm. Hence, the mere circumstance of a contractual fault being simultaneously subject to criminal sanction is no longer sufficient to eliminate the contractual defences, as under current case-law.

•  The possibility to file a tort claim in contractual matters is not mandatory and parties can exclude it in their contract (except in case of physical/psychological harm). Clauses expressly excluding tort liability against a contract party or its auxiliaries will therefore become frequent and auxiliaries/subcontractors will often require their contractor to warrant and prove that the client waived any tort claim against the auxiliaries / subcontractors (to the extent permitted by law).

• Since this new regime on extracontractual liability will probably enter into force in January 2025, one could file extracontractual claims for any fault committed then, even in relation to contracts concluded under the current case-law largely preventing such claims, which appears as unfair. To remedy this, a change of law (on the applicability in time of the relevant articles) should be contemplated. If not, one could expect that judges may consider that for contracts that already existed before Book 6 was approved, the parties have implicitly (given established case-law) excluded any extra-contractual claim. For any new contracts though (even entered before 2025), it is strongly advised to already take into account this new tort liability risk.