Reform of contract law in Belgium – Pre-contractual phase

Flexibility of contract

Short article 5.14 anchors the principle of liberty of agreement. In accordance to posting 5.14, outside the house the circumstances supplied for by regulation, all people is no cost to make your mind up no matter whether he/she is eager to enter into a deal or not and to pick his/her counterparty, without the need of obtaining to justify the motives for this option. Moreover, the functions are free to determine the material of their contract, as extended as it meets the validity prerequisites founded by law.

For that reason, freedom of contract is positioned at three degrees. Very first, events are cost-free to make a decision regardless of whether, they wish to agreement. Next, functions are free of charge to come to a decision with whom they want to contract. Compared with community entities, they do not have to justify their option in accomplishing so. 3rd, parties are cost-free to decide the written content of their contract. All this, of training course, issue to lawful limits, e.g. limitations arising from anti-discrimination regulations, opposition regulation, B2B or B2C regulations, etc. Relating to the content of the deal, short article 5.14 explicitly gives that the contract should meet up with “the validity prerequisites presented by legislation“, which suggests, amid other items, that it need to have a lawful object and result in.

Independence to negotiate

Posting 5.15 enshrines the basic principle of flexibility to negotiate. According to that basic principle, get-togethers are cost-free to initiate, conduct and terminate pre-contractual negotiations. On the other hand, in accomplishing so, they must act “in accordance with the demands of superior religion.” What particularly this usually means and irrespective of whether the events are proficiently performing in accordance with “great faith” ought to be assessed on a circumstance-by-case foundation, using into account all the concrete conditions of the scenario.

Pre-contractual info responsibility

Post 5.16 imposes an obligation on the get-togethers to adequately inform just about every other throughout the pre-contractual section: they should give each individual other, through the pre-contractual negotiations, the info that the regulation, good faith and tailor made, in gentle of their capability, their affordable anticipations and the subject matter make a difference of the deal, demand them to give.

Even so, the Explanatory Memorandum confirms that there is no basic obligation to inform: functions should also advise them selves and are not obliged to communicate all details to every other. They ought to only connect the details essential by law, i.e. the data which the regulation, fantastic faith or customized demand them to talk to the other celebration. For illustration, a soil certification or city scheduling info when offering an immoveable property, or the facts essential to be disclosed to customers underneath the provisions of the Belgian Financial Legislation Code.

What’s more, the Explanatory Memorandum confirms that article 5.16 does not exclude that functions concur on the data to be disclosed all through the negotiations, e.g. in the letter of intent, the heads of phrases, and so on.

Pre-contractual legal responsibility

Post 5.17 anchors the basic principle of pre-contractual liability. According to write-up 5.17, parties “may perhaps incur more-contractual legal responsibility towards each individual other for the duration of pre-contractual negotiations. When negotiations are erroneously terminated, this legal responsibility indicates that the wounded celebration is placed back in the scenario in which he would have been had no negotiations taken area. The place there was a legit expectation that the contract would be concluded without having any question, this liability may possibly involve restore of the reduction of the envisioned web benefits from the contract not concluded. The breach of an facts obligation may possibly guide not only to pre-contractual liability but also to the nullity of the contract if the specifications stipulated in posting 5.33 are fulfilled.”

Consequently, write-up 5.17 describes two instances of pre-contractual liability: the erroneous termination of negotiations and the breach of an details obligation.

About the erroneous termination of negotiations, the Explanatory Memorandum confirms that the liberty to terminate negotiations remains the setting up level and exceptions really should be utilized with good restraint. On the other hand, if there is an erroneous termination of negotiations, the just one who erroneously terminates the negotiations is liable and is obliged to compensate the problems experienced by the wounded occasion. When identifying the payment, in theory, only the “negative contract interest” (“negatief contractbelang” / “intérêt négatif”) is taken into account: the wounded get together should be positioned in the scenario as if he experienced hardly ever negotiated. In this sense, for instance, charges incurred with a look at to the contract negotiation and conclusion that have turn into worthless are qualified for compensation. The decline of an possibility to win a deal with a 3rd get together is also suitable for payment. By contrast, costs that are not causally relevant to the faulty termination of the negotiations, for case in point expenses that would have been incurred anyway, are not suitable for payment.

Exceptionally, the beneficial deal desire (“positief contractbelang” / “intérêt positif”) also qualifies as compensable damages, particularly if the reputable expectation was made that the deal would be concluded “without having any doubt”. In that situation, the injured get together is put in the situation as if the agreement experienced in fact been concluded, so that the damages then consist of the decline of the predicted internet benefits from the contract not concluded. Whether or not the contract would have been concluded “without the need of any doubt” will have to be assessed on a scenario-by-situation foundation, taking into account all the concrete instances of the scenario. In our perspective, this is the case when the contract is thoroughly negotiated and one of the get-togethers withdraws fully unexpectedly and with out realistic justification.

Concerning the breach of an information and facts obligation, article 5.17 emphasizes that this may not only give increase to additional-contractual liability of the one particular who breaches the details obligation, but also to (a assert for) the annulment of the concluded agreement if the deal is afflicted with lack of will as set out in write-up 5.33.