Book 6 of the Civil Code, devoted to extra-contractual liability, was adopted on February 1, 2024 and came into force on January 1, 2025. The new article 6.3 § 2 of the Civil Code extends the extra-contractual liability of auxiliaries. In the event of damage, the injured party will now be able to invoke the contractual or extra-contractual liability of his co-contractor, or the extra-contractual liability of his co-contractor’s auxiliary (or vicarious agent) in the event of failure to perform the contract. The legislator has therefore decided to abolish the quasi-immunity of auxiliaries.

 

This new regime has a direct impact on directors, subcontractors and employees, the latter being considered as auxiliaries.

 

The provisions of Book 6 apply only to events (faults) occurring after January 1, 2025, but are applicable to existing contracts.

 

1. The impact of Book 6 – A new option: contractual or extra-contractual liability towards one’s co-contractor

 

The introduction of the new Book 6 gives the injured party the option of invoking the contractual or extra-contractual liability of his co-contractor for a breach in the performance of the contract. Until now, this option was not available, since only contractual liability could be invoked in the event of a fault committed in the performance of a contract.

 

This new choice will have consequences for the limitation period of the action. Indeed, in matters of contractual liability, the limitation period is 10 years, whereas actions for compensation based on extra-contractual liability are time-barred 5 years from the day following that on which the injured party became aware of the damage or its aggravation and of the identity of the person responsible, or 20 years from the day following that on which the event causing the damage occurred[1].

 

2. The impact of Book 6: Extending the extra-contractual liability of auxiliaries

 

As of January 1, 2025, the injured creditor will be able to bring an extra-contractual action against the auxiliary, even for “contractual” damage linked to non-performance of the contract. In order to claim extra-contractual liability on the part of the auxiliary, three conditions must be met: extra-contractual fault on the part of the auxiliary, damage and a causal link.

 

           

 

Directors (A), subcontractors (B) and employees (C) are concerned, thus putting an end to the quasi-immunity regime from which they benefited.

 

A) Directors’ extra-contractual liability

A director of a company acts as an auxiliary of the company within the framework of the contract entered into with it. Whereas the director was immune from liability claims by a contracting party of the company, they can now be held personally liable for their errors in the performance of their obligations by the company’s contracting parties, without these errors constituting criminal, aggravated or deliberate fault.

B) Extra-contractual liability of subcontractors

Only under strict conditions could the client hold a subcontractor appointed by the main contractor liable in tort.

 

Since January 1, 2025, the client has been able to take direct action against the subcontractor on the basis of extra-contractual liability.

 

The subcontractor, for his part, can still invoke the direct liability of the principal contractor, in accordance with the former article 1798 of the Civil Code.

 

C) Extra-contractual liability of employees

In the past, employees enjoyed a form of almost total immunity, which meant that they could not be held liable by third parties for wrongful acts committed in the course of their work. This principle has been called into question by the new Book 6, since an injured party, such as a customer, can now claim damages extra-contractually directly from the employee and not just from the employer.

 

However, article 18 of the July 3, 1978 law on Employment Contracts provides that the employee is only liable to third parties in the event of fraud, gross negligence or repeated minor negligence. This provision remains in force. Thus, employees will still be able to invoke this defense, and may be held liable for damages caused to the employer or to third parties in the performance of their employment contract only if such damages result from gross negligence, intentional misconduct or repeated minor negligence.

 

3. What can be done about this scope of liability?

 

The provisions of the new Book 6 are suppletive law, which means that the parties can exclude or limit their extra-contractual liability by agreement.

 

Contracts therefore need to be revised to include clauses designed to protect auxiliaries from excessive liability. Such clauses must be drafted clearly and precisely, to avoid any ambiguity and ensure a fair distribution of risk between the parties.

 

A) Company / Contractor contract – clause limiting directors’ liability

If a director’s extra-contractual liability can now be called into question by a creditor of the company, he or she has a number of defenses at his or her disposal, such as those provided for in his or her own contract with the company, those available to the company against its creditor, and those arising from the Companies and Associations Code, in particular article 2:57, which caps directors’ liability in the event of fault at an amount dependent on the company’s total balance sheet and sales over the last three years.

 

We therefore recommend that you amend the contracts concluded between the company and its co-contractors so as to stipulate that the latter waive their right to invoke the extra-contractual liability of directors. Such a clause could be worded as follows:

 

“By entering into a contract with our company, X waives any extra-contractual liability claims against the company’s directors and employees.

Should such a clause be considered unenforceable or inapplicable, the liability of the directors is limited to that provided for in article 2:57 of the Companies and Associations Code”.

 

B) Client / Main contractor contract – clause limiting subcontractors’ liability

Contracts concluded between a company and a prime contractor should be amended to include clauses defining the notion of auxiliary and excluding all extra-contractual liability, both for the parties to the agreement and for the company’s auxiliaries, entrusted with the performance of one or more contractual obligations. Such a clause could be worded as follows:

 

“The Employer waives the right to bring any action for extra-contractual liability against the Contractor as well as against their auxiliaries, for damages resulting from a fault committed within the framework of the contract.”

 

The company’s general terms and conditions may also be revised to provide for this exclusion.

 

C) Third-party / Employer / Employees contracts – clause limiting employees’ liability

As with previous contracts, contracts between employers and third parties could include a clause excluding the possibility of extra-contractual action against employees. Such a clause could read as follows:

 

“By contracting with our company, X waives the right to bring any extra-contractual liability action against the company’s employees.

As part of a contract between an employee and an employer, a mutual indemnity clause could also be provided to include an exoneration or assistance to the employee in the event of recourse by a third party.”

 

 

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With the entry into force of the new Book 6 of the Civil Code, contractual relationships, including those with auxiliaries, are now governed by reinforced principles of extra-contractual liability. Depending on the different interests to be protected, certain clauses could be incorporated into your contracts, such as limitation of liability, exclusion of liability, mutual indemnity or shared liability clauses.

 

 

 

[1] Article 2262bis of the former Civil Code.