1. From 1 January 2023, the new contract law will come into force.

One of the most striking substantive changes concerns the introduction of the so-called imprevision doctrine. Under this doctrine, the court can modify the terms of a contract if it appears that external circumstances have seriously upset the contractual balance.

This imprevision doctrine has not been recognised in Belgian law in the past.

This will change from 1 January 2023, with the entry into force of the article 5.74 new Civil Code, which allows, under well-defined conditions, court intervention in the terms of a contract.

How Article 5.74 New Civil Code will be applied in practice will be determined by case law in the coming years.

2. Possibility and importance of including a contractual derogation?

Article 5.74,5° new Civil Code explicitly states that the imprevision clause cannot be applied if it is contractually excluded. Such contractual exclusion is done by introducing a so-called hardship clause in the contract.

Whether you have an interest in introducing such clause will depend on your position as a real estate player.

In leases, landlords in particular will have an interest in introducing a so-called hardship clause in the lease. After all, they will want to avoid tenants invoking changing circumstances in the future to reduce their agreed rent. It should be noted that the contractual exclusion of the imprevision clause obviously cannot go so far as to exclude the application of the commercial tenant's right to rent review, given the mandatory nature of the Commercial Lease Act. 

In building contracts, it will often be the principal who has an interest in excluding the application of the imprevision doctrine in the building contract. After all, the principal will want to avoid the contractor invoking changing circumstances to increase the agreed contract price or extend the execution period (e.g. a contractor invoking external circumstances that make certain materials more expensive or only available later).

3. Additional questions on this?

Our firm advises its clients on the conclusion of real estate contracts (contracting, rental and construction promotion agreements, sale agreements). It also assists its clients during disputes that may arise during the execution of those contracts.

For more info for this: Jonas DERYCKERE (j.deryckere@athenalaw.be), Johannes SEEL (j.seel@athenalaw.be) and Michel VEELAERT (m.veelaert@athenalaw.be)