What You Need to Know
Key takeaway #1
The new Book 6 of the Belgian Civil Code brought about the abolition of the "quasi-immunity" from direct liability for auxiliaries (such as directors and subcontractors). Interested companies must therefore review their existing contracts to ensure that a similar protection against direct liability is provided for.
Key takeaway #2
Belgian B2B legislation on contractual terms can render invalid clauses that aim to exclude or limit liability. Therefore, any clauses that aim to protect auxiliaries against direct liability must be carefully drafted so as not to come into conflict with the B2B legislation.
Key takeaway #3
The clear communication of contractual terms and confidentiality obligations to all the parties involved, including auxiliaries, is of key importance.
Contract Management Practices Update in Belgian Law in 2025
In recent years, there has been a wave of new legislation impacting contracts and contractual terms. The Belgian legislator is gradually adopting the different Books of our new Belgian Civil Code, such as Book VI. Last February, a new proposal for Book VII on special contracts, including sale and loan agreements was submitted. Additionally, the Belgian Code of Economic Law has been updated several times, impacting the drafting of contracts and of contractual terms, not only between companies but also with consumers.
In this series of alerts, we aim to provide guidance on drafting and reviewing standard contracts and contractual terms.
Our first alert emphasized the importance of drafting fair contract clauses. In this second alert we focus on the abolition of the quasi-immunity for auxiliaries (such as directors and subcontractors), and we look at the interaction between the new Book 6 of the Belgian Civil Code and B2B legislation on contractual terms, and at the steps companies need to take to ensure compliance.
Alert 2: The Abolition of Directors'
"Quasi-Immunity" by Book 6 Looked at in the Light of the
Belgian B2B Contractual Terms Legislation
Introduction
The legal landscape for Belgian businesses is in constant change. Following the introduction of other new Books into the Belgian Civil Code, Book 6 on extra-contractual liability took effect on January 1, 2025. There has already been extensive discussion about the theory of extra-contractual liability, but it is only now that certain practical issues relating to contract drafting are coming to light. In particular, the abolition of the so-called "quasi-immunity" rule changes how businesses should handle risks and how they should draft their contracts. What was once predictable, now requires a careful new approach to liability, compliance, and contract design. In this edition, we explore the new law and existing business practices.
Recap – Abolishing Quasi-Immunity
Before the introduction of Book 6, the auxiliaries ("hulppersonen" in Dutch / "auxiliaires" in French) of a contracting party, e.g., its directors and subcontractors, had immunity from direct liability as regards the third-party customers of the contracting party (i.e., the company they work for / the main contractor), except in criminal cases.
This was known as the "quasi-immunity" of the auxiliary. With the entry into force of Book 6, these auxiliaries can now be held directly liable for non-contractual claims by third-party customers. This change supports accountability and transparency in business.
However, a similar protection as the one that was previously offered to auxiliaries under the "quasi-immunity" system can still be provided for under the new Book 6: third-party liability can be expressly excluded in contracts between the auxiliary (Party A) and the main contractor (Party B), and between the main contractor (Party B) and the end-customer (Party C). These clauses must meet legal requirements, including those contained in B2B legislation (Article VI.91/5 Belgian Code of Economic Law).
Practical Issue: Interaction with B2B Legislation - Liability in Case of Serious Fault
A key question is whether the extra-contractual liability for serious fault of the auxiliary (Party A) can be excluded towards the end-customer (Party C).
While there is no specific definition of a "serious fault", it can be considered that a serious fault is a fault that is so excessive that it is incomprehensible to a reasonable person.
An exoneration clause does not automatically exclude liability for a serious fault; it must be explicitly stated (Article 5.89 New Civil Code). In addition, a clause expressly excluding liability for a serious fault is valid only if no law prohibits it. The B2B law (Article VI.91/5 Belgian Code of Economic Law) includes provisions on liability exclusions critical for B2B contracts. It introduces a "grey list" of clauses presumed invalid, addressing liability exonerations. The law presumes invalidity for clauses that:
- Release a party from liability for its intent, its serious fault, or that of its appointees, except in force majeure cases; or
- Inappropriately exclude or limit legal rights in case of breach or defective performance by the other party.
The B2B law thus restricts exoneration clauses within its scope, including for serious fault. It is therefore important to avoid potential nullity of contractual protection when drafting clauses that are intended to restore the quasi-immunity for auxiliaries.
Steps to Ensure Compliance
A first consideration is that the B2B provisions do not concern clauses that only limit the liability for serious fault without totally excluding such liability.
Further, the B2B limitations only relate to clauses excluding the liability for a serious fault committed by a "representative" ("aangestelden" in Dutch / "préposés" in French), and according to some also proxy-holders ("lasthebbers" in Dutch / "mandataires" in French) (i.e., a director, employee, agent, etc.). This means that exoneration clauses relating to sub-contractors who are not representatives, nor proxy-holders (e.g., a sub-service provider) are arguably not directly affected.
But even then, careful consideration must still be given to the B2B requirement that the legal rights of the third-party customer are not "inappropriately" limited or excluded.
To mitigate risks and ensure compliance with the B2B requirements, consider these steps:
- Review existing contracts to identify and update the relevant clauses that are to provide a protection similar to the former quasi-immunity;
- Review such clauses to make sure these are not adversely affected by the new B2B legislation;
- Pay special attention to provisions that:
- Create a manifest imbalance between the rights and obligations of parties
- Attempt to exclude or limit legal rights in case of breach
- Seek to exempt a company from liability for serious fault;
- Ensure clear communication of contractual terms and confidentiality obligations to all the parties involved, including auxiliaries.
Conclusion
The interaction between Belgian B2B legislation and Book 6 of the Belgian Civil Code is complex and requires careful consideration. The law emphasizes balancing contractual freedom with protection against abuses. Focus on the practical aspects outlined above to implement appropriate solutions for your business.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
