On the 2nd of February 2024, the plenary approved the Act on the Introduction of Book 6 of the Civil Code. As a result, the new rules of Book 6 will enter into force presumably on the 1st January 2025. One of these rules concerns the quasi-immunity of the execution agent or rather its abolition.
Current situation
Under current law, the quasi-immunity of the execution agent (hereinafter: auxiliary person) applies. In short, this means that if an auxiliary person C (e.g.: employees, self-employed persons, directors of legal entities, civil servants, volunteers…) commits an error in the performance of his contract with his co-contractor B, the damaged party A cannot bring a direct action against the auxiliary person for compensation for his contractual damage. The damaged person A must follow the chain of contracts and sue his own co-contractor B (the direct principal of the auxiliary person), who can then exercise recourse against the auxiliary person C. The damaged person A can break this demarcation in case (i) the fault of the auxiliary person C also involves an extra-contractual fault with damages alien to those caused by the contractual fault; (ii) if the contractual default also constitutes a crime; or (iii) if the contract is embedded in a regulatory relationship.
Special legislation is already in place that limits the liability of certain auxiliary persons. Moreover, the recently introduced Article 5.89, §2 of the Civil Code allows auxiliary person C to rely against A on a release clause included in the contract between A and B.
New legislation
However, the new legislation completely reverses the principle and abolishes the quasi-immunity of the auxiliary person.
The basic rule that a contractual action by the damaged person against the auxiliary person is not possible remains in place. However, auxiliary persons can be directly sued extra-contractually in case of contractual damage by the injured co-contractor of their direct principal if both a contractual fault towards the direct principal and an extra-contractual fault towards the injured co-contractor have been committed.
The legislator has left the possibility for statutory or contractual derogations. Thus, the direct extra-contractual liability of the auxiliary person may still be contractually eliminated, or a special law may provide that the damaged party can still bring a direct contractual claim against the auxiliary person.
However, the auxiliary person can benefit from the so-called double effect of contractual defences: both defences from the main contract (between damaged party – principal) and from the sub-contract (between principal – auxiliary person) can be invoked against the damaged party who invokes the extra-contractual liability of the auxiliary person for contractual damage.
This double protection of the auxiliary person does not apply if the contractual damage constitutes physical or psychological harm on the part of the damaged party or if the fault constitutes an intentional fault. In turn, the exceptions to the double effect of contractual defences cannot be contractually eliminated.
Specific implications for directors
As the director of a legal entity, you will be held accountable much more promptly by the legal entity’s co-contracting party. Indeed, where until now it almost required a criminal offence to hold a director liable, in future even a simple mistake will suffice. A director will already incur liability and be held liable for the non-performance of the contract concluded with the legal entity, such as failure to make a payment.
What to do?
It is recommended to pay special attention to the possible exclusion of the extra-contractual liability of the auxiliary person when concluding new agreements. It may also be worthwhile to revise existing contracts, including general sales conditions, and if necessary, rework and/or renegotiate them on this point.
Furthermore, companies can check their insurance policies regarding the scope of coverage against their auxiliary persons and extend this coverage if necessary.
Nuans is always available to provide guidance and tailored advice on this topic.
