BELGIUM Trends and Developments Contributed by: Pieter Puelinckx, Yves Moreau, Melissa Verplancke and Lothar Van Driessche, Linklaters
• A disclosure obligation in the pre-contractual phase – Book 5 further codifies that during contract negotiations, all parties are required to disclose information as required by law, good faith, and customary practice. This obli - gation varies based on the parties’ roles and expectations, as well as contract subject. In real estate transactions, for instance, profes - sionals face stricter disclosure requirements than consumers (who are further protected by consumer laws). Specific legal disclosures, such as energy performance certificates, soil certificates and urban planning information, must also usually be provided in the context of asset deal transactions. Extracontractual liability reform A major cornerstone of the Civil Code reform is the recent approval of Book 6, which delves into the complexities of extracontractual liabil - ity. It is expected that the upcoming Book 6 will transform the six articles of the “old” Civil Code that constitute the current subject matter of the extracontractual liability legal regime in Belgium into a structured compilation of six comprehen - sive chapters. A notable amendment introduced by Book 6 is the possible concurrence that will exist between contractual and extracontractual liability. In case of concurrence between extracontractual liabil - ity and contractual liability, the claimants will have the right to choose which of these two legal bases they will retain as foundation of their legal action. Such concurrence will be permitted between parties to a contract unless otherwise stated by the law or the contract. It is expected to become a common practice to add opt-in/ opt-out clauses for concurrent liability regimes in real estate agreements, including in contracts that are currently being negotiated in anticipa - tion of Book 6.
Additionally, one of Book 6’s important changes concerns the abolition of the current regime of (quasi-) exemption from responsibility of “auxil - iaries” (ie, in the majority of cases, subcontrac - tors, directors, employees, and service provid - ers) against the action of their principal creditor’s co-contractor, as a co-contractor currently may not exercise any claim against such auxiliaries on a contractual basis nor an extracontractual one – except in various, limited cases, such as a purely extracontractual fault causing damag - es that are distinct from the ones relating to the breach of the agreement. The draft Book 6 intends to amend the current regime and to allow claimants, acting as princi - pal creditors, to exercise extracontractual claims against auxiliaries (such as subcontractors). This modification of the current well-established legal regime would consequently allow the principal creditor (eg, the owner of a property) to intro - duce contractual claims against the debtor (such as a company appointed to carry out renova - tion works in such property) and extracontrac - tual claims against the auxiliaries. In order to mitigate the potential impact of the new regime, the auxiliary will be allowed to use the exemp - tions, exonerations and other means of defences included in the contract between the principal creditor and the principal debtor as well as in its own agreement with the principal debtor. This amended provision could consequently have a substantial impact – including in the insurance domain – on construction law, given the exten - sive use of subcontractors in the context of the performance of construction projects. As regards liability for the act of another, the cur - rent draft of Book 6 formally states an objective liability principle for the principal ( commettant/ aansteller ) in the event of harmful consequences caused by a fault (or any other source of liabil -
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