Entry into force of Book 6 of the Civil Code on extra-contractual liability: impact of the abolition of the quasi-immunity of subcontractors in the real estate sector

On 1 January 2025, the new Book 6 of the Civil Code on extra-contractual liability entered into force. The new legislation abolishes the quasi-immunity of auxiliaries (including subcontractors), with potentially significant consequences for the real estate sector.

1.     Old regime: quasi-immunity of subcontractors

Under the old regime, auxiliaries involved in the performance of a contract benefited from protection known as “quasi-immunity”. In the real estate sector, this quasi-immunity applies in particular to the subcontractor, vis-à-vis the principal (maître d’ouvrage/opdrachtgever).

According to Supreme Court case law, the subcontractor is neither a party to the contract between the principal and the main contractor nor an independent third party in this relationship, so that the principal could not invoke the contractual liability or the extra-contractual liability of the subcontractor.

However, by way of exception (hence the ‘quasi’-immunity), the principal could invoke the subcontractor’s extra-contractual liability in so far as the conditions for the concurrent liabilities were met:

(i)     the existence of a fault which constitutes not only a breach of contract, but also a breach of an obligation binding on all (in other words a ‘mixed’ fault, both contractual and extra-contractual);

(ii)    the existence of damages other than those resulting from non-performance of the contract.

In practice, the conditions were rarely met, leaving the principal with no direct recourse against the subcontractor. This situation posed a particular problem in the event of the main contractor’s insolvency: even in the event of a subcontractor’s failure to perform the contract, the principal could not obtain compensation from either the subcontractor or the insolvent main contractor.

Conversely, the subcontractor is able to bring a direct action against the principal for payment of its fees, governed by article 1798 of the old Civil Code and by article 5.110 of the Civil Code.

2.     New regime: principal’s claim against the subcontractor

From 1 January 2025, a principal who has incurred damages has a potential extra-contractual claim against his contractor’s subcontractor, in the event of defects in the execution of the works. The principal will therefore be able to take direct action against the subcontractor, even if there is no direct contractual link. This fundamental change is set out in article 6.3, §2 of the new Book 6 of the Civil Code. This mechanism aims to strengthen the position of the principal and to provide him with a means of recourse when the main contractor is insolvent or in default.

However, this is an extra-contractual claim in the event of extra-contractual fault, since article 6.3, §2 applies “the legal provisions on extra-contractual liability”. There must therefore be an event giving rise to liability under these provisions.

However, this new regime is accompanied by numerous defences and exceptions that the subcontractor can invoke to avoid liability. The subcontractor may rely on:

• the clauses of the main contract between the principal and the main contractor;
• the clauses of its own contract with the main contractor;
• the provisions of common construction law;
• the rules of limitation applicable to the contract.

This may include, for example, liability limitation clauses or exoneration clauses for certain types of damage. These are therefore contractual defences against extra-contractual liability.

Article 6.3, §2 expressly states that it only applies “unless the law or the contract provide otherwise”. This point can therefore be anticipated by the parties when drafting a contract.

According to the transitory regime, the new rules apply to all events giving rise to liability which occur after the entry into force of Book 6 and do not apply to the future effects of events which occurred before its entry into force.

This seemingly simple transitory regime has already given rise to a great deal of controversy with regard to concurrent liability and the liability of auxiliaries. In fact, many events giving rise to liability may occur today – and therefore be subject to Book 6 – that were not anticipated when the contract was concluded. The parties were therefore unable to exclude the application of extra-contractual liability, as the law authorises them to do, since they were obviously not yet aware of the new regime.

We are therefore at your disposal to analyse the impact of the new regime and its possible effects on existing contracts.