Currently, it is in principle impossible for a contracting party to invoke the rules of extra-contractual liability in the context of a contract if the other party fails to perform its obligations. In legal terms, this is known as the prohibition of concurrence between contractual and extra-contractual liability. The principle of the implementing agent’s quasi-immunity follows from this prohibition of concurrence.
The following are considered to be implementing agents:
- Employees in relation to an employer.
- Directors in relation to the company they direct.
- Subcontractors in relation to a main contractor.
In concrete terms, this means that a contracting party who has suffered harm or damage in the performance of a contract can only bring a claim on contractual grounds against the party with which he or she concluded the contract. It follows that implementing agents cannot be held liable directly by the claimant as there is no contract between them.
As a result of the introduction of the new Book 6, contracting parties will be able to take action against an implementing agent in future, both on a contractual and on a non-contractual basis.Consequently, for example, if damage is caused by a subcontractor, as well as suing the main contractor a client can also take action against the subcontractor directly.
For the employee, this means that he or she can also be the target of direct legal action, although Article 18 of the Employment Contracts Law remains applicable. Article 18 states that an employee is only liable to the employer and third parties for intent, major misdemeanours and recurrent minor misdemeanours.
For directors, the changes have the effect of extending their potential external liability, as they can also be held liable by the company’s contractual partners. Where directors’ liability is concerned, the Companies Code and insolvency law continue to apply.
Yes. The legislation allows parties to a contract to maintain quasi-immunity contractually. Limitation of liability clauses can therefore be included in general terms and conditions of sale and individual contracts (employment contracts, cooperation agreements, (sub)contracting agreements, etc.).
The legislators wanted to put an end to certain unfair situations.
For example, the client is currently left empty-handed if a main contractor goes bankrupt and it is the subcontractor that fails to perform its obligations during the works, as it only has a claim against the main contractor.
Civil liability/professional liability/cyber/environment policies:
Since the new legislation now means that claims can also be made against the implementing agents, it is important to make the definition of insured persons as broad as possible, so that anyone who works for a contracting party – such as employees, self-employed persons, interns, temporary workers or volunteers – is included in the cover.
Nothing will change with regard to the cover for subcontractors currently provided in civil liability and professional liability policies. Subcontractors must continue to cover their own personal liability. One possible consequence of the new legislation is an increase in the defence costs borne by the insurer, as multiple claims can be made.
Directors’ liability policies:
A D&O policy covers against the damage resulting from a third-party claim against a director based on management error. The possibility of a non-contractual claim against directors has no further effect on the cover under the policy. As the new regulations expand the director’s external liability, this potentially means more claims and higher defence costs.
The new Book 6 will probably enter into force at the beginning of 2025 and apply to situations that arise from the time of its entry into force.
