Book 6 of the Civil Code: the reform of extra-contractual liability in force since 1 January 2025
Publication · March 20, 2025
Book 6 of the Civil Code, introduced by the Act of 7 February 2024 (Belgian Official Gazette of 1 July 2024, Justel NUMAC 2024001600) and in force since 1 January 2025, substantially reforms extra-contractual liability law, which was previously governed by the now-repealed Articles 1382 to 1386bis of the former Civil Code. The text codifies case law but also alters several fundamental balances. Two developments are of particular interest to companies: the abandonment of the quasi-immunity of the auxiliary (formerly the « executing agent ») and the removal of the prohibition on the concurrence of contractual and extra-contractual liability. These changes must be assessed on a case-by-case basis but already warrant a review of contractual and insurance practices.
Under the former law, the case law of the Court of Cassation granted the auxiliary of the contractual debtor — subcontractor, employee or corporate body — a quasi-immunity that protected it, under certain conditions, against a direct extra-contractual claim by the victim. Article 6.3, § 2, of the Civil Code puts an end to this regime: unless the law or the contract provides otherwise, the rules of extra-contractual liability apply between the injured person and the auxiliary of its co-contractors. The victim may therefore, in principle, act directly against the subcontractor or the performer. This opening significantly broadens the exposure of actors along the contractual chain and must be incorporated into risk analysis, particularly in the construction, logistics and services sectors.
Article 6.3, § 1, also abandons the prohibition on the concurrence of liabilities, a court-developed rule that in principle prevented a co-contractor from invoking extra-contractual rules against its partner. Henceforth, unless the law or the contract provides otherwise, these rules again apply between parties to a contract. Depending on the circumstances, a co-contractor may thus base its claim on extra-contractual grounds, which may affect limitation periods, the scope of compensation or the burden of proof. The precise scope of this option and its interaction with existing contractual clauses will need to be assessed concretely, on a file-by-file basis, taking into account the subject of the dispute and the applicable stipulations.
The reform does not deprive the auxiliary or the co-contractor of all defences. The text allows them, in principle, to invoke against the injured person the defences arising from the main contract and, where applicable, from their own sub-contract. Two important limits are nonetheless set: these arrangements do not apply in the event of harm to the physical or psychological integrity of the person, nor in the event of intentional fault. The balance sought is therefore nuanced: exposure increases, but contractual protections retain a circumscribed effectiveness. Companies have every interest in verifying the consistency between the clauses of the main contract and those of subcontracting agreements, so that the defences invoked can in fact be articulated.
Application over time is governed by Article 44 of the Act: Book 6 applies to facts liable to give rise to liability that occur after its entry into force, and not to the future effects of earlier facts. The decisive criterion is therefore the date of the event giving rise to the damage, and not the date on which the contract was concluded. A contract signed before 1 January 2025 may consequently be subject to the new regime if the harmful event occurs afterwards. A scholarly debate remains as to the fate of contractual relationships entered into under the former law; this still-disputed point will need to be monitored and, in the event of a dispute, verified against the case law that will emerge.
At the contractual level, the Act leaves considerable room for party autonomy: it remains possible to adjust, or even contractually exclude, extra-contractual liability between co-contractors and for the benefit of their auxiliaries, within the legal limits. For ongoing contracts, such an arrangement in principle requires the agreement of the parties. Company directors warrant particular attention: they do not enjoy the immunity specific to employees, and their options for exoneration remain framed by Articles 2:56 to 2:58 of the Code of Companies and Associations. Reviewing the liability, indemnification and limitation clauses in framework agreements and subcontracting arrangements therefore appears to be a priority.
The insurance consequences should not be underestimated. The broadening of direct claims against auxiliaries and the opening of concurrence may alter the exposure covered by general civil liability, professional liability and directors' and officers' (D&O) liability policies. It is advisable to review the adequacy of cover, limits and the definition of insured in light of the new regime, ideally in consultation with brokers and insurers. This note is strictly informative and does not constitute personalised legal advice: each situation must be assessed on a case-by-case basis, in light of the contracts, the facts and the case law developing under Book 6.