The modernisation of contractual obligations

On 21 April 2022, the Belgian Chamber of Representatives has approved the long anticipated Book 1: “General Principles” and Book 5: “Obligations” of the new Belgian Civil Code.

The Belgian legislator has been working for some time on an overall reform and modernisation of its civil law. The old Civil Code was the result of the Napoleontic Civil Code, which had automatically entered into force in 1804 on the Belgian territory. Consequently, most provisions of the Belgian civil law were extremely outdated.

The modernisation took shape in a new Civil Code, where the legislator had first drawn up a framework in order to insert the various components in phases. The new Civil Code will consist of nine Books. The law of obligations (het verbintenissrecht/ le droit des obligations), included in Book 5 of the new Civil Code, is one of the most essential elements of law. It is about how people relate to each other and how they deal with each other.

Over the past two centuries, case law has developed many rules. The new law of obligations aims to give established case law a legal basis, fill in glaring gaps, clarify controversial topics and divide provisions into more logical parts. In addition, the reform also aims to bring a balance between the autonomy of the parties and the role of the judge, as guardian of the interests of the weaker party and the general interest.

Some of the novelties introduced in Book 5 are the following:

• the doctrine of “hardship” (imprevisie/imprévision): if unforeseeable and unexpected conditions occur that make the performance of the contract excessively difficult for one party to anticipate (such as the pandemic or the Ukrainian war), that party has the right to ask the other party to renegotiate or terminate the contract. If the parties fail to reach an agreement, the court may, in an expedited procedure, modify or terminate the agreement.
• the application of the “knock-out rule”: in case of conflicting general terms and conditions of two or more parties (a so called “battle of the forms”), the knock-out rule will be explicitly applicable. This rule implies that the specific terms and conditions that are in conflict will be considered as null. To fill this void, the general principles of civil law will apply.
• the general prohibition on “unfair terms”: a general prohibition will apply on any term that creates a significant imbalance between the rights and obligations of the parties, but this is only applicable to clauses which are not negotiable.
• extrajudicial dissolution or nullity: the nullity or dissolution of the contract may be unilaterally notified by one party to the other, without any judicial intervention, by means of a notification. In the event of a dispute, the dissolution/nullification invoked unilaterally must, of course, still stand the test of the court. This possibility avoids overloading the courts and gives parties more autonomy.

Entry into force

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