Out with the old and in with the new! After 214 years, the Belgian federal government has decided to update the Civil Code.
The reform will extend to the four main parts of the code, i.e. contract law, tort law, property law and the rules on evidence in civil matters.
Given the sheer number of modifications and changes that will be ushered in, NautaDutilh will publish a series of articles covering various aspects of the reform and the progress of the reform.
This article sets out the guiding principles of the reform and briefly describes the government's approach and a few noteworthy amendments.
Guiding Principles
The three guiding principles behind the reform are (i) continuity, (ii) modernity and (iii) accessibility.
- Continuity: The reform does not represent a clean break with the past. Rather many provisions of the Civil Code will be maintained. In addition, a majority of the new provisions will simply codify accepted case law and literature.
- Modernity: As the Civil Code is 214 years old, the government wishes to do away with outdated provisions and insert new, more relevant provisions (such as the possibility to conclude agreements by electronic means). Modernity also implies providing new solutions to existing issues.
- Accessibility: The government wants to make the Civil Code more accessible by adding definitions and giving each chapter a clear structure. The numbering of the Civil Code will be completely overhauled, meaning our beloved Article 1382 will become a thing of the past.
Approach
The government's approach is slightly different from its usual way of proposing legal reforms.
- First, each of the four main aspects of the Civil Code forms the object of a separate bill, thereby ensuring that the various aspects can be reformed at their own speed.
- Furthermore, the Council of Ministers decided, after adopting a first version, to solicit comments on the bills from the public before submitting them to the Council of State. This process has already been completed for all four bills (the tort bill was the last to be submitted to the public, with the public consultation ending on 1 May).
- Based on the results of the public consultation, the Council of Ministers reviews and amends the bills. A second version is then put to a vote and, once adopted by the Council of Ministers, submitted to the Council of State.
The government intends to complete the reform of the Civil Code by the end of this year.
Noteworthy Amendments
Please find below several examples of amendments that will be made to the Civil Code in each of the four main areas.
Contract law
- An entire chapter will be dedicated to the dynamic conclusion of agreements, pre-contractual liability, general terms and conditions and voidness.
- The possibility for a party to preventively suspend the performance of its obligations under an agreement will be introduced in cases where it is manifestly clear that the counterparty will not fulfil its own.
- The possibility to transfer debts and agreements will be expressly enshrined in the Civil Code.
Rules on evidence in civil matters
- The threshold under which proof can be brought be any means will be increased from EUR 375 to EUR 3,500.
- The possibility to bring proof by any means will be extended to any acts between enterprises and to unilateral acts.
- The injured party's right to indemnification will be enhanced and the rules on objective liabilities tightened.
Tort law
The theory of concurring contractual and extra-contractual liability (samenloopleer/théorie du concours) will be amended. The bill provides that the injured party can decide on which legal basis (i.e. contractual or extra-contractual) it wishes to base its claim.
Property law
- The modalities of the rights in rem (e.g. long term leases (erfpacht/emphytéose), rights to build (opstalrecht/droit de superficie) and usufruct (vruchtgebruik/usufruit)), including the terms thereof and the obligations of the parties, will be amended.
- The bill expressly introduces the possibility to grant a right in rem on another right in rem.
