WHAT DOES THE ABOLITION OF THE QUASI-IMMUNITY OF DIRECTORS COME DOWN TO IN PRACTICE?

In Belgium, the abolition of the quasi-immunity of directors must be reviewed in a much wider context. Book 6 of the Belgian Civil Code, which entered into force on 1 January 2025, forms part of a broader reform of the Belgian Civil Code aimed at modernising and simplifying various aspects of civil law.

Among the key changes introduced by this reform are two significant interconnected amendments related to the so-called cumulation rule and the abolition of quasi-immunity for auxiliaries, such as directors. These changes mark a fundamental shift in liability rules, significantly altering how contractual and extracontractual claims can be pursued.

The cumulation rule

Under the previous legal framework, a relative non-cumulation rule (samenloopverbod/principe de non-cumul) applied, meaning that a contracting party could not hold their co-contractor liable in tort for a breach of contract.

There were two notable exceptions to this rule: (i) when the breach of contract constituted a criminal offence; and (ii) in cases of mixed fault involving both a breach of the general duty of care and a contractual obligation, leading to purely tortious damages. In other words, as developed by notorious case law, the fault and the damages had to be different from the contractual fault and damages.

With the abolition of this prohibition, contractual and extracontractual liability now formally coexist. This effectively broadens the scope of legal recourse available to contracting parties, giving them more flexibility in enforcing their rights. Under article 6.3, section 1 of the Belgian Civil Code, if a party commits a tortious act in the execution of a contract, the other party can now pursue both contractual and extracontractual claims.

However, this is a supplementary rule, meaning parties may contractually deviate from it, including by limiting extracontractual liability. Therefore, to mitigate potential liability risks, it is crucial for parties to explicitly define in their contracts to what extent extracontractual liability is limited or excluded. By doing so, they can avoid unintended exposure to parallel claims and ensure greater legal certainty.

Apr-Jun 2025 issue

Dentons Europe LLP