Abolition of the concurrence prohibition and of the quasi-immunity of the auxiliary person

Book 6 (extra-contractual liability) of the Civil Code was adopted on 1 February 2024, as the next step in its overall reform. An important change is the abolition of the “concurrence prohibition” and of the “quasi-immunity of the auxiliary person”. In this article, we reflect on what this means.

The concurrence prohibition and the quasi-immunity of the auxiliary person …

In Belgium, the “concurrence prohibition” between contractual and extra-contractual liability currently applies: if one has a contract with another person, who then commits a shortcoming related to that contract, one can only hold that other person liable for breach of contract. An extra-contractual claim against that other person will not be possible, unless the breach of contract was also a crime (or is part of a legally regulated relationship). The importance of the concurrence prohibition is great and lies mainly in not being able to circumvent contractual liability limitations and not being able to claim against one’s contracting party’s auxiliary persons: they are “quasi-immune” (e.g. a subcontractor or the director of a company).

The example of a client using a (main) construction contractor, who himself uses a subcontractor for part of the works (e.g. for installing windows), is typical. If the subcontractor causes damage (e.g. by damaging the floor out of carelessness), the client cannot hold him directly liable by contract, as they do not have a contract with each other. On the other hand, he cannot do so extra-contractually either, since the subcontractor does perform works from the main contract between the client and the main contractor and there is the prohibition of concurrence between contractual and extra-contractual claims related to the same facts. The client can therefore only address the main contractor, and only on a contractual basis. However, the subcontractor is only “quasi” immune: he can still be held contractually liable by the main contractor and extra-contractually by mere third parties (e.g. if the windows would fall on a passer-by).

… disappear from our liability law

From now on, concurrence will be allowed: in the case of a breach of contract which is also a tort, the injured party will have the choice between a contractual and an extra-contractual claim. On the other hand, the liable party will now be able to invoke his defences from the contractual relationship (e.g. limitation of liability, specific legal prescription or contractual exclusion of concurrence) also against the extra-contractual claim, unless he harmed the physical or psychological integrity of the injured party (e.g. unintentional assault and battery) or intentionally caused the damage.

What then about the auxiliary person’s position? A contractual claim by the principal creditor against the auxiliary person of his contracting party remains impossible, as there is no direct contract between them. However, an extra-contractual claim will now be possible, unless this is excluded or limited by the (main or sub-) contract or by specific legislation. Indeed, the auxiliary person will enjoy a double protection: he can invoke against the principal creditor both the defences from the contractual relationship between the principal debtor and the principal creditor and those from his own contractual relationship with the principal debtor (i.e. unless in the event of wilful intent or violation of personal integrity). Auxiliary persons will thus be more exposed to liability and the insolvency risk of the principal debtor is also partly shifted from the principal creditor to the auxiliary person. On the other hand, the importance of specific legislation protecting auxiliary persons (e.g. employees for a one-off minor negligence) will obviously increase.

Entry into force

Book 6 of the Civil Code is expected to enter into force on 1 January 2025 and will apply to damage-causing events that occur after its entry into force, but not to future consequences of events that have occurred before that date. It is (for now) unclear whether the act will also apply to a post-entry into force breach of a contract which in itself dates from before. In any case, it will be important to take this new playing field into account in contracts and insurance policies

Bruno Thoen and Wibo Van Poeck De Langhe Attorneys