Law and regulation of force majeure in Belgium

Yes.

Article 1148 of the Belgian Civil Code states: “No damages shall be payable where, as a result of a force majeure or fortuitous event, the debtor has been prevented from giving or doing what he was obliged to do, or has done what he was forbidden to do”.

Parties are free to regulate force majeure clauses.

In B2B transactions, parties are totally free to regulate the conditions, definitions or effects of the occurrence of a force majeure event. Nothing prevents the debtor from waiving any case of force majeure, or from undertaking to indemnify the creditor, even in case of force majeure.

In B2C transactions, clauses which in case of force majeure, only allow the consumer to terminate the contract against payment of damages, are deemed abusive and are hence prohibited.

According to case law and doctrine, force majeure can be defined as ‘an event of an insurmountable and, some say, unpredictable nature, independent of any fault on the part of the debtor which prevents the latter from performing its obligations or from complying with proprietary standards of fault, while remaining within the limits of the diligence that can be expected from it’.

In order to qualify as an event of force majeure, the event must be:

• unforeseeable;
• irresistible or unsurmountable;
• not attributable to the debtor; and
• must result in the absolute and definitive impossibility of the performance of the obligation.

Yes, see above.

No difference.

Yes, please see below:

“Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from an event, circumstance or cause beyond such party’s reasonable control, without such party’s fault or negligence and that by its nature could not have been reasonably foreseen by such party or, if it could have been reasonably foreseen, was unavoidable, including, but not limited to, fire, flood, storms, earthquakes, acts of terrorism, acts of war, acts of government authority, strikes, labour disputes or other industrial disturbances, embargoes, blockades, legal restrictions, riots, internet and online system failure, power failure ("Force Majeure Event"). 

If a party is unable to carry out any of its obligations under the Agreement due to a Force Majeure Event, the Agreement shall remain in effect but the obligations in question (and the other party’s corresponding obligations, if any, under the Agreement) shall be suspended for so long as the Force Majeure Event continues or for one month, whichever is the shorter, provided that:

• the suspension of the performance is of no greater scope than is necessitated by the Force Majeure Event;
• the party suffering the Force Majeure Event immediately gives the other party written notice of the occurrence and its expected duration, and continues to furnish regular reports while the Force Majeure Event continues and notifies the other party immediately when it ceases; and
• that party uses all reasonable efforts to remedy its inability to perform and to mitigate the effects of the Force Majeure Event.

Without affecting any other right or remedy available to it, if a Force Majeure Event continues for more than one month, the other party may terminate the Agreement immediately on serving written notice to that effect on the party suffering the Force Majeure Event”.

"Epidemic disease outbreak" and "virus" could be added to the definition of Force Majeure Event in the abovementioned clause. 

However, note that the event must be unforeseeable at the time the agreement is concluded. For all agreements concluded at the time the media began reporting on the spread of the Coronavirus, it will be difficult to use force majeure as a defense in case of breach.

• The exceptio non adimpleti contractus principle entitles a party to a synallagmatic contract to suspend the performance of its obligations, as long as its co-contracting party remains in default of performing its own obligations.
• When parties have contractually excluded the right to invoke force majeure and when performance of the parties' obligations is made impossible (e.g. as a result of governmental measures), it may constitute an abuse of rights if one party still requires its co-contracting party to perform its obligations.