Adoption of Book 6 of the New Civil Code: abolition of the quasi-immunity of the auxiliary

On 2 February 2024, Book 6 of the New Civil Code was passed in the Belgian House of Representatives. This book modernises extra-contractual liability law by codifying the main evolutions developed in case law and legal doctrine and by introducing several innovations.

One of the most remarkable innovations concerns the liability of "auxiliary persons", such as subcontractors.

An auxiliary is a natural or legal person entrusted by the debtor of a contractual obligation (the main contractor) with the full or partial performance of this obligation, regardless of whether he performs this obligation on his own behalf and in his own name or on behalf and in the name of the debtor.

Typical examples of auxiliary persons are employees, subcontractors, company directors, representatives and so on.

Under current liability law, auxiliary persons enjoy extensive protection. Indeed, they cannot be held directly liable by the principal creditor (the client of the main contractor) on a contractual basis, as they are not party to the principal contract between the principal creditor (the client) and the principal debtor (the main contractor).

This means that under the old rules, the principal creditor (the client) can only hold the auxiliary (the subcontractor) liable on an extra-contractual basis for the damage it causes in the performance of the contract and only under the same conditions as it can hold the principal debtor extra-contractually liable.

Indeed, the Court of Cassation ruled that an auxiliary person – who performs (part of) the principal debtor’s obligations – is not a third party as regards the performance of the principal contract and vis-à-vis the principal creditor. As the auxiliary person is involved in the performance of the principal contract, he is deemed to act as an “involved” third party.

To this day, concurrence between contractual and extra-contractual liability is in principle prohibited. An aggrieved principal creditor cannot invoke extra-contractual liability against the principal debtor unless the contractual default also constitutes a criminal offence or if the fault attributed to him constitutes a breach not only of the contractual obligation but also of the general duty of care, leading to damages other than those resulting merely from the defective performance of the contract.

The auxiliary person can therefore also only be held extra-contractually liable in the aforementioned exceptional cases. This is in practice referred to as the “quasi-immunity” of the auxiliary person.

The doctrine of quasi-immunity has been subject to criticism, as it may result in highly unfair situations for the principal creditor. For example, consider the situation where a claim against the principal debtor produces no useful result because the latter was declared bankrupt or can invoke a clause in the contract disclaiming its liability, leaving the principal creditor empty-handed.

The new Book 6 distances itself from the Court of Cassation’s jurisprudence on the very limited concurrence between contractual and extra-contractual liability, putting an end to the quasi-immunity of the auxiliary person.

A principal creditor will now be able to directly hold the auxiliary person extra-contractually liable for breaches of the general duty of care and will therefore be able to choose between bringing either a contractual claim against its principal debtor or an extra-contractual claim against the auxiliary person.

For company directors, the entry into force of Book 6 implies that, in addition to the grounds for directors' liability, they can also be sued directly extra-contractually by the contracting parties of the company for which they act as a director.

In order to maintain the contractual balance, the legislator has stipulated that the auxiliary person may invoke against the aggrieved principal creditor the same remedies that the principal debtor can also invoke under the principal contract or under the law as well as those that he himself can invoke against his co-contractor (the principal debtor). This may include clauses limiting liability vis-à-vis the principal creditor, limitation exceptions and so on.

Moreover, the provisions of Book 6 are in principle of supplementary law, meaning that the parties may contractually deviate from them.

Consequently, it is possible and advisable to introduce contractual protection mechanisms for the auxiliary person in the contracts the latter enters into with his co-contractor. For example, the auxiliary person can stipulate in his general terms and conditions and/or contract with his co-contractor (the principal debtor) that he cannot be sued by the principal creditor.

The new rules are scheduled to come into force on 1 January 2025. Facts giving rise to liability from the date of entry into force will fall under the new regulation. However, it remains unclear whether the new rules will also extend to contracts that were concluded before the entry into force, but where the claim arose after the law entered into force.

We will obviously keep a close eye on any further developments.

Do you have any questions or would you like more information? Please don't hesitate to contact our specialists.