Contract Law

Yes, under certain conditions. Since the formalisation of existing case law and legal doctrine in Book 5 of the Civil Code, a party can rely on the so-called “imprévision doctrine” (change of circumstances), unless the parties have contractually excluded this. If unforeseen circumstances make the performance of a contract excessively onerous, the disadvantaged party can ask for the agreement to be renegotiated. If the negotiations fail, the court can ultimately intervene: it can adapt the contract or even terminate it in whole or in part.

However, not every price increase or economic setback justifies relying on this rule. The circumstances must have been exceptional and reasonably unforeseeable. If a contract is difficult to perform because of rising costs or changed market conditions, a legal analysis of the contract is advisable.

“Boilerplate clauses” are standard provisions that are often placed at the end of a contract. They regulate, among other things, the competent court, the applicable law, notices, the transfer of rights, confidentiality and the consequences of any invalidity of contract provisions.

Although they are sometimes regarded as less important, they can play a decisive role in a dispute. A poorly worded jurisdiction or arbitration clause, for example, can give rise to complex discussions. It is therefore worth reviewing these clauses carefully as well.

An arbitration clause can be attractive when the parties want to resolve disputes outside the ordinary courts, and within a shorter period than before the ordinary courts. Arbitration generally offers more discretion and the possibility of appointing specialised arbitrators. This is common in complex commercial agreements or international contracts.

However, the procedure can be more expensive than court proceedings. For smaller disputes, arbitration is therefore not always the most suitable solution. A careful assessment in advance is essential. In contracts with consumers, the validity of an arbitration clause must be checked separately.

A mediation clause obliges the parties to first try to resolve their dispute amicably with the help of an accredited mediator. In many cases, this approach can save time, costs and commercial relationships. In long-term cooperation, mediation often offers a better chance of a lasting solution than proceedings.

Even when no agreement is reached, mediation often helps to clarify the parties' positions. In a majority of cases, a full agreement or at least a partial agreement can be reached through mediation. A well-drafted clause clearly states when and how the mediation procedure is to be started.

Usually, yes. Belgian law starts from the principle of consensualism: an agreement comes into being as soon as the parties reach agreement on the essential elements. A written contract is therefore not always required.

The problem often lies in proving the agreements made. It is therefore advisable to confirm important agreements in writing. A clear written agreement prevents evidentiary problems if a dispute arises later.

Unclear clauses regularly lead to legal proceedings. The court will try to establish the parties' real intention and interpret the clause within the context of the entire contract. If the lack of clarity persists, specific rules of interpretation may be applied. In certain cases, an ambiguous clause is even interpreted against the party that drafted it. Clear drafting therefore remains the best prevention.

That depends on the content of the contract and the applicable statutory rules. Some agreements contain express termination options or termination clauses. In other cases, a serious contractual breach can justify dissolution. There are possibilities for out-of-court dissolution.

A careless termination can, however, itself constitute a breach of contract. Legal advice in advance is therefore often advisable.

Yes, in principle. Parties may agree in advance on the amount that will be due if a contract is not performed. Such a clause offers legal certainty and avoids discussions about the extent of the damage. The court can, however, reduce a manifestly excessive amount. The clause must therefore be proportionate to the foreseeable harm. A balanced wording increases the likelihood that the clause will stand.

Read not only the commercial terms, but also the general terms and conditions and the legal clauses. Pay attention to, among other things, limitations of liability, payment terms, termination options, dispute resolution provisions and restrictions on competition. Many risks are hidden in standard provisions that are rarely read thoroughly. A legal screening in advance is usually considerably cheaper than a dispute afterwards. Preventive advice remains the best investment.

During negotiations, companies must act loyally and provide information that is essential for the other party's consent. This includes, for example, information that one knows or ought to know is decisive for the decision to enter into an agreement. Exactly which information must be disclosed depends on the nature of the agreement and the expertise of the parties.

It is not required to reveal all commercial or strategic information. Deliberately withholding crucial information may, however, give rise to liability. Careful management of the pre-contractual phase prevents many disputes afterwards.

For commercial cooperation agreements that meet the statutory definition in Book X of the Code of Economic Law (WER), a draft agreement and a separate pre-contractual information document must moreover be provided at least one month before the agreement is concluded. This regime may apply to franchise, concession or distribution agreements, but this must be assessed on the basis of the specific agreement and not solely on the basis of its name.

The consequences depend on the nature of the missing information and on the applicable statutory regime. Under the general law, the failure may give rise to damages and, where it has caused a defect of consent, possibly to nullity.

For commercial cooperation agreements that fall under Book X WER, the absence of the draft or of the pre-contractual information document, or failure to observe the one-month waiting period, can lead to nullity of the entire agreement within two years. The absence of certain mandatory contractual particulars can, by contrast, result in the nullity of only the clauses concerned. Incorrect or incomplete socio-economic information is in principle assessed under the general law.

An unfair term is a contractual provision that creates a manifest imbalance between the rights and obligations of the parties. Book VI of the Code of Economic Law (WER) prohibits such terms, both in contracts between businesses and consumers (B2C) and in contracts between businesses (B2B).

For B2C, Articles VI.82 to VI.84 WER apply, with a black list of terms that are always prohibited. For B2B, Articles VI.91/1 et seq. WER have applied since 1 December 2020, introduced by the Act of 4 April 2019. These include a general test, a black list of always prohibited terms and a grey list of terms that are presumed to be unfair. The B2B rules do not apply to contracts for financial services and public procurement.

In both regimes, an unfair term is prohibited and null and void. The rest of the contract remains binding if it can continue to exist without that term. Terms on the main subject matter and the price are in principle not tested, provided they are drafted in a clear and understandable way. Regularly reviewing your general terms and conditions against these rules reduces the risk of nullity.

Not without more. For industrial and commercial prices, a clause that automatically links the price to the consumer price index or another general index figure is in principle prohibited. A price revision clause may, however, be based on parameters that represent actual costs.

Each parameter may only be applied to the corresponding portion of the cost, and the price revision may in principle cover a maximum of 80% of the final price. Specific statutory or sector-specific exceptions remain possible. The validity of the formula used must therefore always be examined in concrete terms.

No. A non-compete clause must be proportionate as regards duration, geographical scope and activities concerned. A restriction that goes further than necessary to protect a legitimate interest may be declared invalid in whole or in part.

The assessment is always made on the basis of the specific circumstances. What is acceptable in a takeover of a company is not necessarily acceptable in an ordinary commercial relationship. A legal review in advance prevents unpleasant surprises.

A non-solicitation or non-poaching clause is not permitted without more. An agreement between companies not to approach or hire each other's staff may constitute a prohibited restriction of competition. Such a clause can only be justified if it is directly related to a legitimate main transaction and is objectively necessary and proportionate for it. The duration, the categories of staff concerned and the scope of application must therefore be strictly limited.

Between businesses, a general prohibition has applied since 1 December 2020 on terms that, alone or together with other terms, create a manifest imbalance between the rights and obligations of the parties (Article VI.91/3 WER). In addition, there are two lists.

Always prohibited (black list, Article VI.91/4 WER), including:

• purely potestative terms, where the performance of the business's obligations depends on a condition that depends solely on its own will;
• terms that give one party the right to interpret the contract unilaterally;
• terms that exclude any form of redress, such as self-help clauses.

Presumed unfair, unless proven otherwise (grey list, Article VI.91/5 WER), including:

• the right to change the price, characteristics or conditions of the contract unilaterally without valid reason;
• the tacit renewal of a fixed-term contract, or a binding effect, without a reasonable notice period;
• placing the economic risk on a party other than the one on whom it normally rests;
• inappropriately limiting the statutory rights of the other party;
• limiting the admissible means of evidence;
• penalty clauses that are manifestly disproportionate to the expected damage.

A business that contracts with consumers must comply with the rules of Book VI of the Code of Economic Law (WER) on market practices and consumer protection. The main obligations are:

• providing clear and understandable information in advance, such as the business's full identity, postal address and e-mail address, the main characteristics of the product or service, the payment, delivery and performance terms, and the existence of the legal guarantee;
• clearly stating the price including VAT and all mandatory costs, and complying with the reference price rules for price reductions;
• drafting general terms and conditions clearly and understandably, since in case of doubt a term is interpreted in the consumer's favour;
• not including unfair terms (Articles VI.82 to VI.84 WER);
• not engaging in unfair commercial practices, such as misleading or aggressive practices;
• in distance selling, respecting the 14-day right of withdrawal and clearly indicating that an order entails an obligation to pay, since without a clear order button the consumer is not bound by the order;
• providing the consumer with an overview and confirmation of the order on a durable medium;
• respecting the two-year legal guarantee on consumer goods.

If the required pre-contractual information is not provided, the consumer can claim damages and the FPS Economy can impose a fine, determined on the basis of the business's turnover. Unfair terms are also null and void.

In contracts with consumers, a term is unfair if it creates a manifest imbalance to the detriment of the consumer. Article VI.83 WER contains a black list of terms that are prohibited in all cases. The most common are:

• terms by which the consumer is irrevocably bound, while the business makes its own performance subject to a condition that depends solely on its own will;
• terms that allow the business to set the price arbitrarily at delivery or to increase the price unilaterally afterwards;
• terms that allow the business to unilaterally change the conditions or characteristics of the contract;
• terms by which the business unilaterally determines the delivery period;
• exclusion clauses that exclude the business's liability for gross or intentional fault, or for frequently occurring slight fault;
• penalty clauses that impose a fixed compensation on the consumer in the event of non-performance, without equivalent compensation payable by the business that fails to perform;
• terms that charge extra costs when the consumer opts for a paper invoice.

In addition, a term that is not on the black list may also be unfair if it creates a manifest imbalance.

A webshop that sells to consumers must comply with, among other things, the rules of Book VI WER on distance selling and of Book XII WER on electronic commerce. The main obligations are:

• a clear statement of the business's identity: name, address, e-mail address, company number and VAT number;
• clear information in advance on the main characteristics of the product or service, the legal guarantee and the right of withdrawal;
• the total price including VAT and all additional costs, such as delivery and payment costs, from the outset;
• an order button that clearly indicates that the order entails an obligation to pay;
• a right of withdrawal of 14 calendar days, which cannot be excluded or restricted, subject to statutory exceptions such as made-to-measure or perishable goods;
• an online withdrawal function (withdrawal button);
• a legal guarantee of two years on consumer goods;
• delivery within 30 days, unless another period has been agreed;
• a privacy statement and a cookie policy that comply with the GDPR and the cookie rules.

If the consumer is not correctly informed about the right of withdrawal, the withdrawal period is extended by twelve months on top of the 14 days.

The most common mistakes in a webshop's general terms and conditions are:

• excluding, shortening or attaching conditions to the right of withdrawal;
• limiting the two-year legal guarantee, or making the consumer bear the return costs when relying on that guarantee;
• reserving the right to change prices or delivery periods unilaterally;
• excluding the webshop's liability entirely;
• imposing a unilateral or non-reciprocal compensation on the customer;
• charging extra costs for a paper invoice;
• omitting or incompletely stating mandatory information, such as identification details, the total price or the information on the right of withdrawal;
• copying standard terms that are not adapted to Belgian law and to the webshop's way of working.