Increased liability in construction: challenges and solutions for contractors

From January 2025, the new Book 6 of the Civil Code will make (sub)contractors in the construction chain directly extra-contractually liable for potentialerrors. The introduction of this new principle entails that (sub)contractors and their auxiliaries can be held liable more easily by injured parties, and not only directly by their client, for the execution of their works. In this article, real estate lawyer Dieter Vanelverdinghe explains how contractors can prepare for this.

Chain of contractors: liability

In the construction sector, it is common for a main contractor to hire several subcontractors to carry out a construction project. In their turn, these contractors often engage other subcontractors.

This chain of (sub)contractors often triggers a complex (and legal) dynamic. It is essential that clear contractual agreements are made to define the responsibilities and liabilities of all parties involved.

In practice, parties often pay insufficient attention to this dynamic, causing the obligations (and risks) of the (sub)contractors to be misaligned.

The new Book 6: increased risk and liability

The new Book 6 of the Civil Code, which enters into force on January 1, 2025, removes the quasi-immunity of the executing agent (Art. 6.3 CC) for all damages occuring as from that date (including for contracts started before January 1, 2025).

In other words, the principal (owner or main contractor) will be able to directly hold the involved subcontractor(s) accountable (on an extra-contractual basis) and bypass the intermediary contractor with a direct claim.

Furthermore, there are also implications for the employees and agents of the construction parties involved: employees can now be held directly liable by the contractual parties of their employer for errors committed during the execution of their work. Although employees still enjoy some protection under article 18 of the Employment Contracts Act (Arbeidsovereenkomstwet), this protection does not apply, with respect to e.g. serious or repeated minor errors.

The introduction of Book 6 thus leads to an increased liability risk for contractors and their agents or employees.

Contractual solutions

As a contractor, you can limit your liability by acting proactively. Proper, clear contractual agreements are essential to mitigate risks.

However, contractually excluding these changed liability risks is not straightforward. For example, there are important exceptions for bodily injury, intentional and gross negligence, etc. In addition, the technical and legal rules of contract law and the Code of Economic Law (Wetboek Economisch Recht) must be respected.

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