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Connecting the dots in the new contract law: new rules, risks and opportunities for entrepreneurs

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Stefanie Claeys
Lawyer
NOMA blog verbintenissenrecht
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Good agreements create clear expectations, especially in the corporate landscape. The recent reforms in Belgian contract law, with Book 5 “Liabilities” introduced last year and Book 6 “Extra-contractual Liability” coming up in 2025, are creating new principles with an instant impact on your commercial relationships and contracts. Stefanie Claeys, a lawyer at NOMA specializing in contracts, outlines the essence and points for attention of these changes. From the imprevisal doctrine and the anticipatory breach to the knock-out rule and the importance of personalized general terms and conditions.

New rules,
more legal certainty
NOMA blog verbintenissenrecht detail 1

New contract law and the need for certainty in business relationships

Contract law is the cornerstone of business relationships. An area of law that is deep-rooted on the one hand, but also alive and kicking on the other, Stefanie stresses. “The reforms in Belgian contract law have dramatically changed the legal playing field for entrepreneurs. We also notice this with our clients: companies increasingly need clarity on the consequences of these changes for their contracts and business relationships.”

In response to that demand, NOMA developed a practical manual on general terms and conditions and (un)lawful clauses. “Thus, we offer a clear guideline that entrepreneurs can immediately get started themselves,” Stefanie explains. “In addition, as a law firm, we are of course available for more in-depth guidance and tailored advice.”

Limiting liability as first contractual reflex

When it comes to tightening and personalizing both B2B and B2C contracts, limitation of liability is one of the core clauses. “Entrepreneurs expose themselves to numerous risks in commerce and naturally want to limit their liability as much as possible. At the same time, the law also sets limits: for example, serious errors cannot be excluded, and clauses must always remain balanced and lawful. The protection for consumers goes even further: there is the legal warranty period, the right of withdrawal, the list of black clauses, and so on.

A standard document often falls short here, Stefanie continues. “Although entrepreneurs still often think that a general clause is sufficient, standard formulations usually do not hold up in court. Judges quickly recognize a model clause. A custom-drafted clause, on the other hand, which is tailored to the nature of the business and the size of the transactions, shows that careful thought has gone into it and offers much more legal certainty.”

Contract law, conformity and hidden breakage

Another recurring theme is regulations around conformity and defects. Stefanie explains: “The legislation provides a general framework, but as a law firm we like to tailor our advice to each client's specific products and services. Conformity is about delivering exactly what was agreed upon, while visible and hidden defects highlight another side of the story.”

She gives an example: “Suppose someone orders a blue car and the supplier delivers a red one. Then the issue is a clear conformity problem. If the car is blue, but there is a dent in it, then we speak of a visible defect. With hidden defects, we think of something that only becomes visible later, such as an engine defect.” To prevent ambiguities from leading to conflicts, Stefanie recommends that business owners work with set deadlines for reporting defects. “That way the customer knows exactly what is expected of them, and later misunderstandings are avoided.”

Imprevision and force majeure in contracts: this is how your company prepares

In addition to force majeure, a concept that has long existed in our legal system, the recent Civil Code reforms also introduced the principle of imprevocation. “Force majeure” deals with situations in which it is completely impossible to fulfill your obligations, such as natural disasters. Imprevision, on the other hand, deals with circumstances that make the performance of a contract severely difficult, but not impossible.”

An example from the construction industry: “During the recent crises, the prices of building materials rose dramatically. If a contractor has to purchase his materials at double cost, his business comes under severe financial pressure. In such a case, he can invoke imprecision and ask to revise the terms.” Stefanie notes that many clients choose to include imprecision in their contracts, although others explicitly exclude it. The same goes for judicial intervention in the event of a disagreement. “It is important to determine in advance whether you want to provide imprecision, and whether you want to retain the right to renegotiate in the event of unforeseen circumstances. By agreeing this well in advance, entrepreneurs can move forward with confidence.”

Reforms affecting
your contracts
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Navigating between ENAC, anticipatory infringement and exceptio timoris

The new contract law also gives business owners more protection when they suspect that the other party will not fulfill its obligations. “Exceptio timoris and anticipatory breach are actually an extension of the existing ENAC principle,” Stefanie explains. “The ENAC (exceptio non adimpleti contractus) states that a party can suspend its obligations when the other party has not fulfilled its own. Exceptio timoris goes a step further: if there is a well-founded fear that the other party will not fulfill its own obligations, you yourself can suspend all your obligations.”

The anticipatory breach extends this principle further. “Here you can even terminate the contract early when it is clear that the other party will no longer be able to fulfill its obligations. Say your contract partner files for bankruptcy: then it is already pretty certain that that party will no longer be able to deliver. With anticipatory breach, we can then terminate the contract immediately.”

Who has the last word? The knockout rule explained

Since January 2023, the so-called knockout rule has provided clarity on a common question: whose terms and conditions apply when both parties put forward their own? “There used to be different theories, such as the first shot or last shot rule, depending on who was first or last to submit their general terms and conditions,” Stefanie explains. “Now the knockout rule stipulates that both sets of general terms and conditions apply, as long as they were notified in advance and tacitly accepted.”

When there are conflicting terms and conditions, only the conflicting clauses expire. “This ensures that both parties can keep their terms without questioning the entire contract. It's important for companies to know how their terms compare to the other party's so they don't get any surprises.”

Looking ahead in contract law: NOMA keeps you up to date

With the amendments to Book 5 and soon Book 6 of the Civil Code, the Belgian legislator is introducing a slew of new provisions that thoroughly redraw the legal playing field for companies. Moreover, as recently discussed, the abolition of the concurrence prohibition and quasi-immunity from 2025 is also on the agenda. So plenty of changes to keep up with, and NOMA is happy to support you in applying these rules in your practice.

About
Stefanie Claeys

Stefanie Claeys began her career in notarial practice, where she gained extensive experience in real estate and contract law. In 2021, she made the switch to the legal profession and has since strengthened the team of Marlex, now NOMA. Known for her direct and pragmatic approach, Stefanie focuses on contract and construction law, with a strong focus on negotiating conclusive agreements. With her broad expertise in tax, litigation and real estate, Stefanie provides effective solutions to complex legal challenges.

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