Important Changes in Liability Law as of 2025: What Entrepreneurs Need to Know

On January 1, 2025, Book 6 of the New Civil Code (NCC) came into force, with significant changes to liability law. We clarify what these changes mean for you as an entrepreneur, consultant, or director.

Two fundamental changes are central:

• The introduction of concurrence between contractual and non-contractual liability
• The abolition of quasi-immunity for auxiliary persons

These changes require a revision of your existing and future contracts and general terms and conditions.

What does concurrence of liability mean?

Old situation

Previously, a strict separation applied: within a contractual relationship, one could only invoke contractual liability, not non-contractual liability. The contractual provisions always took precedence.

New situation

As of January 1, 2025, the contracting party can choose: damages can be recovered based on contractual OR non-contractual liability. This means an additional possibility to obtain compensation for damages.

Contractual protection remains important

This new regulation does not mean that contractual agreements lose their value. On the contrary: those who are held liable non-contractually can still rely on:

• Contractually agreed limitations of liability
• Specific legislation on special contracts
• Special limitation periods

There is one important exception: in case of damage to someone's physical or psychological integrity, or in case of intentionally caused damage, these contractual protections do not apply.

Auxiliary persons: from quasi-immunity to liability

Who are auxiliary persons?

Auxiliary persons (formerly called "execution agents") are persons or companies engaged by a contracting party to perform a contract in whole or in part. Think of:

• Subcontractors
• Employees
• Directors
• Consultants and freelancers
• Service providers

Old situation

Under the old law, auxiliary persons enjoyed quasi-immunity. If customer A had a contract with company B, and B engaged auxiliary person C who made a mistake, then A could only hold B liable. C remained immune from direct non-contractual liability towards A. The only exception was if C's mistake constituted a criminal offense.

New situation

As of 2025, this protection has disappeared. Auxiliary persons can now be held directly liable by the injured contracting party. In the example above, A can now directly hold C liable based on non-contractual liability.

Protection for auxiliary persons

To prevent auxiliary persons from becoming completely vulnerable, the law does provide an important protection: auxiliary persons can invoke all defenses available in:

1. The main contract (between A and B)
2. The subcontract (between B and C)

This means that an auxiliary person cannot be held liable under stricter conditions than the main contractor.

Directors of companies: a special case

Directors are also auxiliary persons, but a specific liability regime already applies to them according to the Companies and Associations Code) (CAC):

• Directors are not personally bound by the obligations of the company (art. 2:49 CAC)
• They can be non-contractually liable for errors towards third parties (art. 2:56 CAC)
• Their liability is assessed via marginal review: it is only considered whether a normally prudent director would have acted differently in the same circumstances
• The CAC sets financial limits (caps) on liability for minor errors that commonly occur
• This liability may not be further limited than legally permitted

Practical implications for your business

These rules are not mandatory law

An important point for your practice: the aforementioned legal changes are not mandatory law. This means that you can deviate from these new rules in your contracts. But if you do not provide for this, the changes apply automatically.

Contractual measures you may consider

1. Excluding the concurrence of liability regimes
2. Maintaining quasi-immunity for auxiliary persons
3. Passing these provisions up the contractual chain
4. Including liability limitations, to the extent legally permitted

For directors

The interaction between the CAC and the new Book 6 remains somewhat unclear. And it remains to be seen how case law will evolve in this regard. However, it is generally accepted that:

• A company can stipulate that its directors cannot be held directly liable by contracting partners
• Directors can invoke the same defenses as the company
• Directors cannot be completely indemnified from liability in advance by their own company

Limitations

In all cases, liability remains for:

• Intentional errors
• Damage to life or physical integrity

Entry into force

The new rules apply to facts that occurred after January 1, 2025, even for contracts signed before this date. For events before that date, the old law remains applicable.

Action required

It is essential to review your existing contracts, contract templates, and general terms and conditions in light of these changes. It may also be advisable to review your directors' insurance policies.

Do you wish to maintain the protection of quasi-immunity in your contracts or do you have other questions about this new legislation? Then contact our office for expert advice tailored to your business.

Jeroen Lison

#LegalDirect #innovation #entrepreneurs #NewCivilCode #LiabilityLaw #Contracts