Until now, non-contractual liability was largely excluded when parties were bound by a contract (commonly referred to as the \u00ab\u00a0prohibition of concurrent liability\u00a0\u00bb). This is no longer systematically the case. From now on, a creditor may choose to take action based on either contractual or non-contractual liability against their contracting party.<\/p>\n\n\n\n
\ud83c\udfaf What this means for you:<\/strong><\/p>\n\n\n\n \u2705 Actions to take:<\/strong><\/p>\n\n\n\n \u2714\ufe0f Update your contracts to include clauses specifying the permitted remedies \u2013 for example, by waiving Article 6.3 of the Civil Code. <\/p>\n\n\n\n \u2714\ufe0f Strengthen your liability exemption clauses by explicitly stating their applicability to both contractual and non-contractual matters\u2014while keeping in mind that fraud and intentional misconduct cannot be waived. <\/p>\n\n\n\n \u2714\ufe0f Adjust your company\u2019s insurance coverage to account for new possibilities of non-contractual liability.<\/p>\n\n\n\n 1.b. End of Quasi-Immunity for the Executing Agent (Article 6.3): Redefine Your Recourse Strategies<\/strong><\/p>\n\n\n\n From January 1, 2025, any auxiliary (formerly referred to as an \u00ab\u00a0executing agent\u00a0\u00bb), effectively carrying out the contract\u2014such as a subcontractor, company director, or even an employee\u2014can be personally held liable based on non-contractual liability for any damage caused to a third party in connection with the execution of the contract.<\/p>\n\n\n\n \ud83c\udfaf Implications for your business:<\/strong><\/p>\n\n\n\n \u2705 Actions to take:<\/strong><\/p>\n\n\n\n \u2714\ufe0f Update auxiliary contracts with the company to clarify liability limits and include appropriate guarantees. <\/p>\n\n\n\n \u2714\ufe0f Review contracts between the company and third parties to prevent excessive exposure of executives, while complying with mandatory contract law rules and public policy principles, particularly concerning fraud and intentional misconduct. <\/p>\n\n\n\n \u2714\ufe0f Include (partial) exemption or liability limitation clauses in contracts between the company and its contracting party, as well as between the company and its auxiliaries.<\/p>\n\n\n\n 2. Non-Contractual Fault and the General Standard of Prudence (Article 6.6): Implement Compliance Processes<\/strong><\/p>\n\n\n\n The concept of non-contractual fault has been redefined with new criteria. The well-known notion of the \u00ab\u00a0prudent and reasonable person\u00a0\u00bb is now replaced by considerations such as the state of scientific knowledge, proportionality of preventive measures, reasonably foreseeable consequences of conduct, and professional best practices.<\/p>\n\n\n\n \ud83c\udfaf Impact on your business:<\/strong><\/p>\n\n\n\n \u2705 Actions to take:<\/strong><\/p>\n\n\n\n \u2714\ufe0f Implement a risk assessment process before making decisions affecting safety or compliance. <\/p>\n\n\n\n \u2714\ufe0f Define your business activities and contractual services precisely to limit the risk of being held liable for negligence. <\/p>\n\n\n\n \u2714\ufe0f Maintain traceability of your technological and scientific choices to prove diligence and compliance with best practices. <\/p>\n\n\n\n \u2714\ufe0f Train your teams on new prudence requirements and sectoral best practices.<\/p>\n\n\n\n 3. Liability of Corporate Governance Bodies (Article 6.15): Secure Your Governance<\/strong><\/p>\n\n\n\n From 2025, companies may be held liable for illicit acts committed by their governing bodies and their members during and in connection with their functions. However, this is no longer justified by the well-known \u00ab\u00a0organ theory\u00a0\u00bb (\u00ab\u00a0the act of the organ = act of the legal entity\u00a0\u00bb) but by the principle of vicarious liability, which requires repairing harm caused by those for whom one is responsible.<\/p>\n\n\n\n \ud83c\udfaf Implications for your business:<\/strong><\/p>\n\n\n\n \u2705 Actions to take:<\/strong><\/p>\n\n\n\n \u2714\ufe0f Optimize internal control mechanisms: Implement or strengthen monitoring and audit systems for decisions made by governance bodies to prevent misconduct. <\/p>\n\n\n\n \u2714\ufe0f Document governance policies rigorously: Establish clear and updated procedures, ensuring that all strategic decisions are well-documented to demonstrate diligence and compliance. <\/p>\n\n\n\n \u2714\ufe0f Train your executives and directors on new legal obligations, associated risks, and best practices in management and governance.<\/p>\n\n\n\n 4. A More Flexible Causal Link (Article 6.18): A New Defense Strategy<\/strong><\/p>\n\n\n\n The legislator now allows judges to dismiss a causal link if it appears too tenuous between the fault and the damage.<\/p>\n\n\n\n \ud83c\udfaf Opportunities for your business:<\/strong><\/p>\n\n\n\n \u2705 Actions to take:<\/strong><\/p>\n\n\n\n \u2714\ufe0f Keep meticulous records of incidents to demonstrate minimal involvement in case of litigation. <\/p>\n\n\n\n \u2714\ufe0f Adjust contracts with third parties to reinforce \u00a0the absence of liability in cases of distant causal links, for example, by stipulating that liability will only be engaged if a sufficiently direct and obvious connection is established. <\/p>\n\n\n\n \u2714\ufe0f Anticipate this defense in your legal strategies, particularly for ongoing litigation cases.<\/p>\n\n\n\n 5. Compensation for Loss of Opportunity (Article 6.22): An Increased Compensation Risk<\/strong><\/p>\n\n\n\n Book 6 introduces a proportional causality approach for loss of opportunity, facilitating victim compensation. Even if the causal link is uncertain, the victim can obtain partial compensation based on the probability that the fault actually caused the loss.<\/p>\n\n\n\n \ud83c\udfaf Risks for your business:<\/strong><\/p>\n\n\n\n \u2705 Actions to take:<\/strong><\/p>\n\n\n\n \u2714\ufe0f Strengthen your evidence and contractual documents \u00a0to limit exposure to such claims. <\/p>\n\n\n\n \u2714\ufe0f Clarify liability clauses to frame and limit the concept of loss of opportunity.<\/p>\n\n\n\n 6. Proportional Liability in Cases of Multiple Causes (Article 6.23): A New Risk-Sharing Approach<\/strong><\/p>\n\n\n\n If multiple companies are likely to have caused damage, they may be held proportionally liable, even if the exact cause is unidentified.<\/p>\n\n\n\n \ud83c\udfaf Consequences for you:<\/strong><\/p>\n\n\n\n \u2705 Actions to take:<\/strong><\/p>\n\n\n\n \u2714\ufe0f Strengthen your liability clauses with your partners, by specifying each party\u2019s obligations. <\/p>\n\n\n\n \u2714\ufe0f Conduct internal audits to identify and limit exposure to risks linked to multiple causes.<\/p>\n\n\n\n Steve Griess<\/a><\/p>\n\n\n\n Partner THALES Lawyers \u2013 Distribution and consumer protection<\/p>\n\n\n\n steve.griess@thales.be<\/a><\/p>\n\n\n\n\n
\n
\n
\n
\n
\n
\n
![\"steve-griess-thales-avocat-bruxelles-lawyer-advocaat\"](\"https:\/\/www.thales.be\/wp-content\/uploads\/2024\/05\/0014-scaled-e1715692880845-1024x1024.jpg\")
<\/figure>\n\n\n\n![\"emma-heck-thales-avocat-bruxelles-lawyer-attorney-advocaat\"](\"https:\/\/www.thales.be\/wp-content\/uploads\/2024\/09\/emma-e1726061382482-1024x1024.jpg\")
<\/figure>\n\n\n\n