On Feb. 1, 2024, the final text of Book 6 of the new Civil Code (BW) was adopted. This book introduces a number of new rules regarding extra-contractual liability including the elimination of the quasi-immunity of the auxiliary person in Article 6.3. This amendment raises a number of questions on behalf of auxiliary persons: When does it apply? What is the new regime like? Specifically, what does it mean for me? What can I do to prepare? We answer these questions in this blog.
When and to whom does the new liability regime apply?
The new liability regime covers auxiliary persons who can be either natural persons (e.g., employees) or legal entities (e.g., subcontractors).
More specifically, Article 6.3 of the Civil Code applies to the following situation: a principal creditor has a contract with a principal debtor and the principal debtor relies on an auxiliary person to perform (part) of its contractual obligations.
How does the new rule work?
The new rule provides that the principal creditor, namely the person to whom the principal debtor is committed, can hold the auxiliary person non-contractually liable for the damages she suffered as a result of the auxiliary person’s fault.
There are some exceptions to this, however:
- Special legislation deviates from Art. 6.3. This is the case, for example, with respect to employees (Art. 18 Employment Contract Act);
- Contractual deviations either in the contract between the principal creditor and the principal debtor or in the contract between the auxiliary person and the principal debtor.
Please note that these exceptions cannot be invoked if the damage was caused by physical or mental impairment or by the intentional fault of the auxiliary.
Specifically, what does this mean for me and what can I do to prepare?
If you are acting as an auxiliary person and do not fall under one of the above exceptions, principal creditors will be able to bring extra-contractual liability claims against you from the entry into force of the new Book 6.
Concrete example: Party A is a company that enlists the services of Party B to renovate its office spaces. Party B calls on your services for part of the works. During the works, you inadvertently damage a water pipe within one of the office spaces, causing Party A material damage. Party A can hold you non-contractually liable for the damage suffered, where previously it could only hold Party B liable.
Because the new regime is of supplementary law, the parties can nevertheless depart from it by contract. As explained above, the auxiliary person can rely, among other things, on the exceptions contained in the contract she/he has entered into with the principal debtor.
Specific example: Have you included a clause in your contract with Party B that excludes extra-contractual liability for your unintentional mistake? Then you can invoke this clause against Party A who wanted to hold you non-contractually liable for the accidental damage to the water pipe.
It is therefore advisable to review your contracts or general terms and conditions and modify them where necessary taking into account the above change. We are happy to help you with this!
Also, in case you have any specific questions regarding this, contact us!
