New legislation will impact contractual relationships as from 1 January 2023

The start of the new year shall be accompanied by new legislation. Book V (law of obligations) of the Belgian Civil Code, published on 1 July 2022 in the Belgian Gazette, shall enter into force on 1 January 2023.

The new legislation shall apply to all agreements concluded after its entry into force, as well as legal facts occurring after its entry into force. The following provides further guidance on whether it shall apply to new or renewed agreements, existing agreements and terms & conditions or policies that are published on a website. 

Agreements concluded before 1 January 2023

Except if the parties have agreed otherwise, the new legislation will not affect agreements and obligations concluded before its entry into force.

Agreements concluded after 1 January 2023

In principle, the new legislation will apply to all new agreements that are concluded by parties after the above date.

For example, the new rules shall apply to new service agreements, terms & conditions, etc. that are concluded after this date.

However, the following is excluded from the application of the new legislation:

• no consequence of a legal act or event if that legal act or event took place before 1 January 2023; or
• any legal act or event that relates to an obligation arising out of a legal act or event that took place before 1 January 2023.

For example, the new legislation will not impact:

• any amendment, extension or renewal of an agreement entered into before the entry into force of the new legislation;
• implementation agreements (e.g., statements of work) entered into under a framework agreement that was entered into before the entry into force of the new legislation;
• any payment arising out of an obligation that has been entered into before the entry into force of the new legislation;
• any transfer of debt relating to an obligation entered into before the entry into force of the new legislation;
• any reimbursement or loss of an obligation due to termination or nullification of an agreement that was entered into before the entry into force of the new legislation.

The new legislation can cover agreements entered into before 1 January 2023, only if parties explicitly declare that the new Book V Civil Code applies to them. For example, contracting parties can make the new legislation applicable to an existing agreement, its amendment, extension or renewal.

For all agreements that fall within the scope of the new legislation, it is highly recommended for companies to anticipate to the upcoming changes, such as but not limited to the general principle relating to the knock-out rule, hardship, prohibited unlawful clauses and extrajudicial dissolution or nullity.

Terms and conditions/policies on a company’s website

It is common for companies to publish legal documents on their website, such as general terms and conditions, terms of use and policies.

For the avoidance of doubt, the new legislation shall apply to these documents as from 1 January 2023. It is recommended to analyze them in light of the new legislation and amend them accordingly.