Belgian Civil Code

Need for innovation

NECESSITY OF MODIFICATION OF RULES ON CONTRACTUAL DAMAGES – The Belgian Civil Code can still be used by creative case law, but is somewhat out of date. This seems to be particularly the case as regards the measure of damages for breach of contract. In a recent comparative study on contractual remedies, however, an Australian professor praised French contract law as it stood in 1804: “Whereas French contract law was extremely well developed by 1804 when the Code civil was first published, English contract law in contrast was still astonishingly undeveloped.” Would this again be valid as of 1 October 2016, with the entry into force of the new French contract law as regards the rules on the quantification of damages for breach of contract? Should the Belgian legislator draw inspiration from the new French legal framework on damages for breach of contract?

CURRENT PROVISIONS ON THE MEASURE OF DAMAGES FOR BREACH OF CONTRACT (ARTICLES 1149–1153 CC) – In Belgium the ordinary measure of damages for breach of contract is still governed by the Articles 1149–1153 of the Code civil. Article 1149 CC only provides a vague guideline for the basic measure of compensation: the aggrieved party is entitled to compensation for the loss suffered, including loss of profit. In addition, the Civil Code recognises some limits on that liability. However, those limits of unforeseeability (Article 1150 CC) and indirectness (Article 1151 CC) of harm caused by a breach of contract have been hollowed out in practice. Do these articles still serve any purpose? In this context the subsequent question arises as to why the duty to mitigate and the recoverability of non-pecuniary loss and lost chances are not yet enshrined in Belgian provisions on the measure of damages for breach of contract? With Belgium swiftly moving closer to a new Belgian Civil Code, the French reform should be considered in detail from the perspective of contractual damages.