New Belgian Law Of Contracts: Impact On It Contracts

• Published date: 10 March 2023
• Subject Matter: Corporate/Commercial Law, Employment and HR, Media, Telecoms, IT, Entertainment, Contracts and Commercial Law, Contract of Employment, IT and Internet
• Law Firm: Timelex
• Author: Stefan Van Camp and Bernd Fiten

As from 1 January 2023, provisions of the new law of contracts will apply. These (new) provisions will have an impact on several aspects of IT contracts concluded after that date. In this blog post, we explain 7 important changes on IT contracts.

What will change and when will the changes take effect?

The laws introducing Book 1 and Book 5 of the new Civil Code were published in the Belgian Official Gazette on 1 July 2022:

• Book 1 contains general principles of civil law,
• Book 5 contains the rules of the new law of obligations. This book is certainly not a revolution in the field of contract law but rather a codification of the evolution of case law and legal doctrine, while also anchoring a number of disputed issues by the legislature.

These rules enter into force on 1 January 2023 and will apply to contracts concluded after 1 January 2023. Existing contracts that are extended, renewed or executed after this date will continue to be governed by the old regime, unless the contracting parties agree otherwise.

Below, we highlight some salient provisions that may have a particular impact in the context of IT contracts and electronic commerce:

1. Notification by electronic means
2. Conflicting general terms and conditions
3. Unlawful clauses and abuse of weak position
4. Price reduction as a contractual remedy
5. Changes concerning the termination of an agreement
6. Substitution ("step-in")
7. Termination of depending related contracts

1. Notification by electronic means (Article 1.5 of the Civil Code)

1.1. Article 1.5 of the Civil Code: the principle of notification

Article 1.5 of the Civil Code deals with the principle of notification, which may be relevant for the notification of a contract proposal (binding or non-binding) to a negotiating partner and the acceptance (binding or non-binding and proven) of a proposal by the addressee. This principle is also relevant for the notification of legal acts such as the termination or unilateral dissolution of a contract. It is traditionally accepted that a notice reaches the addressee when the addressee takes note of it or could reasonably have taken note of it.

1.2. A notification via e.g. e-mail requires prior acceptance

For notifications made by electronic means (e.g. e-mail), there is an element of legal uncertainty, as there is a possibility that an electronic address may no longer be used by the addressee. Therefore, Article 1.5 Civil Code stipulates that notification to an electronic address is only deemed to have reached the addressee if the addressee has previously accepted the use of that electronic address or any other electronic means of communication.

1.3. How the acceptance of the communication medium should be made and whether it can be implied is not determined by law

The law does not specify how such acceptance must be made, nor whether such acceptance must be explicit. An e-mail address, together with the other coordinates of contacts, can be mentioned as contact details in a classic written agreement. However, it is unclear whether acceptance of a particular means of communication or an electronic address can also be inferred implicitly, e.g. when a person has used the means of communication itself to communicate proposals or legal acts. During the parliamentary preparation, it was mentioned that the use of an electronic address is only accepted within the context in which the use was agreed upon. This would then e.g. only be accepted as a means of communication in the context of one particular contract for which this means of communication was agreed. This limits the possibilities of implied acceptance. If no electronic address or means of communication was accepted, the sender will have to prove knowledge of the electronic communication.

2. Conflicting general terms and conditions ("battle of the forms")

2.1. Article 5.23 Civil Code: the negotiated contract prevails and conflicting general terms and conditions cancel each other out

Article5.23 Civil Code regulates the so-called "battle of the forms". When parties submit their mutual contract proposals during negotiations and they both declare their general terms and conditions applicable - which by definition will be contradictory on many points - the question arises which general terms and conditions will apply when the contract is concluded. Under the old regime, different solutions to this conflict were applied.

Article 5.23 Civil Code first states the logical rule...