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Coronavirus – Force majeure – Belgium

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  • Coronavirus - Country overview
  • Coronavirus - Force Majeure issues


Is COVID-19 a force majeure event?

It goes without saying that the COVID-19 outbreak has a very heavy impact on commercial relationships. Shortness of employees or commodities, obligatory lockdowns, delays in deliveries, restrictions on business travels, closing of borders…

In this article, we consider whether the coronavirus (COVID-19) can be invoked as a force majeure event in contractual relationships governed by Belgian law.

A force majeure event in Belgium

Articles 1147 and 1148 of the Belgian Civil Code provide for a legal base of the concept force majeure. They do however not provide an exhaustive list of what should be understood as a force majeure event.

When can you invoke force majeure?

1. Did the event make the performance of the contractual obligation impossible?

The provision of the services you offer will be more difficult, the on-time delivery of your products will be costlier… these situations will not be sufficient to invoke force majeure.

It really needs to be an insurmountable impediment to the performance of your contractual obligation, or at least a reasonable impossibility to fulfil your contractual obligation.

2. Is the event (also) due to your fault?

In order to invoke force majeure, the event may not be due to or related to the fault of the one invoking force majeure. In addition, if there was/is a possibility to prevent the event or the negative consequences of such event, you should be able to prove that you have taken those steps to avoid the happening of (the consequences of) the event.

3. Was the event unforeseeable?

This needs to be analysed at the timing of signing of the agreement or conclusion of the terms of your business relationship.

So, if you concluded the agreement in the last two weeks or even in the last months, it will be hard or more difficult to argue that the coronavirus was unforeseeable upon conclusion of the contract.

What are the consequences of force majeure in Belgium?

As a principle, invoking force majeure will lead to temporarily releasing the party invoking force majeure from its contractual obligation and the liabilities linked thereon. As a consequence, your counterparty should not be successful when invoking damages for the failure to perform your obligations.

Force majeure does not of itself mean the end of your agreement or certain obligations under an agreement, unless the event makes it permanently impossible for to fulfil your contractual obligation(s).

After termination of the temporarily force majeure event, you will have to resume your contractual obligations.

Is the coronavirus (COVID-19) a force majeure event?

It should be established whether the coronavirus constitutes an unforeseeable event on the day you contracted your agreement, whether the coronavirus causes to render the performance of your obligations (temporally or definitively) impossible and whether you did the necessary to avoid/prevent (the negative consequence) of the coronavirus.

Due to the fact that the WHO determined that the coronavirus is a pandemic and seen all the measures taken by governments all over the world (causing suspension or substantial obstacles to major economic stakeholders) which are forced upon you, you have good arguments to invoke the coronavirus and its related measures as being a force majeure event.

You will nevertheless have to analyse whether the coronavirus was unforeseeable when you concluded your agreement and whether you have taken all necessary steps to avoid/prevent the negative consequences of the coronavirus.

What can you do at this stage?

1. Review your commercial contracts

You could check whether your commercial contract contains a force majeure clause.

Your agreement contains a force majeure clause

It is not legally required, but quite common that Belgian contracts contain a provision on force majeure. The description of the force majeure will depend from contract to contract, which might contain a list of exhaustive or non-exhaustive unforeseeable circumstances, such as flood, fire, strike, energy blackouts, unexpected legislation, etc.

In addition, the clause might foresee specific notice deadlines and the concrete consequences to such force majeure event, e.g. temporary suspension of the obligation in question, an extension of time or a right of one party to reimbursement of certain additional costs incurred; the right to terminate the contract in its entirety, e.g. when the force majeure event lasts for a continued period.

Your agreement does NOT contain a force majeure clause

This should not be a problem under Belgian law. You can still rely on the legislation (articles 1147 and 1148 of the Belgian Civil Code) and principles set out above. There are however no specific contractual specifications on timing of notification of your counterparty and on the consequences of invoking force majeure.

It might therefore be recommended not to sit still, but to contact your counterparties to discuss how you can tackle these situations and, if necessary, to notify them by registered letter that you want/need to rely on force majeure.

2. Notify your counterparty

If you are the one who wants to invoke force majeure in order to be (temporarily) released from your contractual obligations, you will be the one who needs to deliver proof of the occurrence of the force majeure event. Hence, you can notify your counterparty by demonstrating that the Coronavirus and all restrictive, imperative measures imposed by governments and authorities around the world, meet the criteria of force majeure.

Legal advice on force majeure during coronavirus

If you have any questions regarding contract performance or force majeure, please do not hesitate to approach us at the contacts details set out below.

We can help you:

1. to advise on the determination of the circumstances of force majeure

2. to help draft letters to your business relations when invoking force majeure

3. to evaluate contract terms to identify potential risks

4. to advise and represent with a view to amending contracts in response to changed circumstances (if possible)

5. to represent in pre-litigation, dispute resolution and mediation;

6. to represent in court and arbitration in disputes