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![]() With Covid-19 raging worldwide, Belgium has been swept up in the storm
as well. The situation is improving and we are slowly but steadily preparing to reopen our economic
activity soon. But what does Covid-19 mean for contracts under Belgian law
and for the proceedings pending before the Belgian courts?
It is clear that the performance of many contracts, such as
manufacturing or distribution or even license agreements, will be impacted by
the consequences of the Covid-19 outbreak and the governmental measures taken
in its wake.
In this situation, the first thing to do is to check the terms and
conditions of the contract itself. If the contract does not contain any clear
provision on unforeseeable events or force majeure, the question arises
whether Belgian law contains any provisions that may release the contracting
parties from their obligations.
Articles 1147 and 1148 of the Belgian Civil Code enable a contractual
party to avoid normal performance of the contract without having to pay
damages in case of force majeure. The Belgian Supreme Court further specified
that force majeure is present when three conditions are met, namely (i) an
unforeseeable event (ii) beyond the control of the party who is to perform
the contract (iii) which renders the performance of the contract (temporarily or permanently) completely impossible.[1]
Although each contract and each situation must be examined on a
case-by-case basis, it is significant that on 11 March 2020 the World Health
Organization designated the Covid-19 outbreak as a pandemic, stating that it
had never seen a pandemic that can be controlled. It is therefore fair to say
that the Covid-19 outbreak meets the (second) condition of being beyond the
control of the contracting parties.[2]
The question whether the Covid-19 outbreak constitutes an unforeseeable event
(first condition), very much depends on the time when the contract was
entered into: if the contract was concluded years ago, the pandemic will
normally be qualified as unforeseeable. However, this will not be the
case if the contract was entered into last week. The last condition, whether
the Covid-19 outbreak renders the performance of the contract completely
impossible, is a question of fact that very much depends on the performance
concerned. Payment as such, for instance, is not a performance that is made
impossible by the Covid-19 outbreak. But timely delivery of certain
manufacturing products under license – to give a random example- may very
well be.
Judicial proceedings in Belgium have meanwhile been regulated by a
special “Corona” Royal Decree No 2 dated 9 April 2020 and published in the
Belgian State Gazette on the same date. This Royal Decree provides that all
procedural deadlines ending between 9 April and 3 May 2020 are automatically
extended until 3 June 2020. This automatic extension does not apply to urgent
or precarious matters. Furthermore all hearings for oral arguments in civil
proceedings that were scheduled to take place between 11 April and 3 June
2020 are automatically cancelled and the matter will be judged on the basis
of the written documents, exhibits and trial briefs submitted to the court,
unless parties object to such a written adjudication of the matter. In that
case, the oral hearing will take place on a later date. Finally, limitation
periods and time limits for taking legal action falling between 9 April and 3
May 2020 are also extended until 3 June 2020. Note that it is foreseen in the
Royal Decree that the currently mentioned enddates of 3 May and 3 June 2020
may be extended by the government if necessary.
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