New liability rules from Jan. 1, 2025: what will change for your business?

As of January 1, 2025, Belgian liability law will take a radical new turn. The new Book 6 “Extra-contractual Liability” of the Civil Code introduces two essential changes: the abolition of the concurrence prohibition and of the quasi-immunity of the enforcement agent. This reform provides injured parties with more opportunities to recover damages, but also challenges entrepreneurs to manage their liability risks even more carefully. What exactly is changing? Marlies Janssens and Stefanie Claeys, lawyers specializing in contract law, explain the most important changes and how you, as an entrepreneur, can best prepare for these new rules of the game.

Breaking the barrier: abolishing the conflation ban

Until now, contractual and extra-contractual liability could not be combined. Where a contract existed between two parties, the injured party was limited to contractual liability.

From Jan. 1, 2025, the introduction of Article 6.3 of the Civil Code will put an end to this prohibition of concurrence: an injured party will be able to obtain damages both contractually and extra-contractually. This opens the door for additional claims in situations where the injured party can claim compensation not only on the basis of a contract, but also on the basis of the general standard of care.

Caution | Even with concurrent liability, the basic rules for extra-contractual liability remain unchanged: for example, there must be fault, damage and a causal connection.

How is your company preparing for the new liability rules?

With the elimination of the concurrence prohibition and quasi-immunity, the Belgian legislature is implementing some significant changes from 2025, resulting in a significant increase in the risk of liability. Indeed, while contractual liability is normally regulated and limited via the contract, extra-contractual liability is not automatically limited. As a business owner, you will therefore need to take action on this. A thorough preparation and timely screening of your agreements is then no unnecessary luxury.

Like most of the rules in the new Book 6, the combination of extra-contractual and contractual liability and the liability of the performing agent is only of supplementary law. This means that, as a business owner, you have the option to deviate from this in your agreement to effectively manage your risks. Some ways you can contractually intervene:

1 | Introduce concurrence prohibition

A first important adjustment is that you can choose to explicitly include the concurrence prohibition in the contract, for example through a separate clause or in the general terms and conditions. A must for thorough risk coverage, especially in contracts with high liability risks.

2 | Contract between co-contractor and performing agent

If you (1) act as a performing agent yourself or (2) frequently use performing agents, you may choose to shield yourself or your performing agents back from liability. This can be done on two levels: on the one hand, you can modify your own contract with the principal, often in your general terms and conditions. On the other hand, you can include in the contract with your performing agent, for example, a strength commitment. This is an enforceable promise to your performing agent that he may not be sued by third parties, or that you will otherwise intervene in any damages caused thereby.

3 | Limiting liability for employees and directors.

With executing agents being directly liable for their errors as of 2025, as a business owner it is best to consider contractual protection against risk for employees, directors, managers and representatives in a timely manner. This can be done, for example, by entering into an indemnity agreement or reintroducing quasi-immunity so that third-party claims against executing agents are excluded or subordinated to claims against your firm. Establishing a management company also provides additional protection against personal liability claims, as does taking out appropriate directors' liability insurance.

Liability law 2025: new opportunities for contractual customization

The above commentary leaves no doubt: as of Jan. 1, the new Book 6 of the Civil Code calls into question some established principles of liability. In addition to the challenges discussed, this new legislation also presents an opportunity for entrepreneurs to strengthen their legal position. Do you have questions about amending your contracts or general terms and conditions? Our lawyers screen your agreements with an eye for detail and advise from experience, so that your company is well prepared for these new regulations.