Auxiliary liability rules change on 1 January 2025
October 2024 - From 1 January 2025, the quasi-immunity of auxiliary persons, such as freelancers and subcontractors, will change. As an entrepreneur, what do you need to know about this?
As part of a modernised Civil Code, the new Book 6 of the Civil Code was adopted on 1 February 2024. Subsequently, the federal government approved an amendment to the (extra-contractual) liability rules in the summer of 2024. This has major implications for auxiliary persons, such as freelancers, other independent service providers and subcontractors.
Today, the liability of auxiliary persons in the performance of their tasks is rather limited. However, with the approved new legislation - which will come into force on 1 January 2025 - they will also be able to be sued by their client's clients when they cause damage in the performance of their assignments.
Who are auxiliaries?
The term ‘auxiliary person’ refers to natural or legal persons who are charged by the debtor of a contractual obligation with the full or partial performance of this obligation, irrespective of whether they perform this obligation for their own account and in their own name or for the account and in the name of the debtor. Examples include employees, subcontractors, service providers, directors, representatives, freelancers, etc. Freelancers may carry out their activities as sole proprietors or under a corporate structure.
Current framework: quasi-immunity
Under current law, there is a concurrence prohibition between contractual and non-contractual liability. This means that in contractual relationships, such as those between a client and a freelancer, the freelancer can only be held liable by the client on the basis of the contract. Through contractual provisions and clauses, this liability can be limited or subject to certain conditions. As a result, clients of the client, who have no contractual relationship with the freelancer, cannot sue him if they suffer damages as a result of the performance of his assignment.
From 01/01/2025: end of quasi-immunity
The new legislation lifts this concurrence prohibition. As a result, the freelancer's quasi-immunity expires, and clients of a client can hold him directly (extra-contractually) liable in case of errors. Specifically, a freelancer thus runs the risk of being sued by both his direct client and end clients.
Collaborative contracts revised for additional protection
The new law provides that a freelancer can also invoke the liability limitations and defences he can raise against his direct client against the client's clients. This means that every contract must contain clauses covering the freelancer's liability. In other words, a thorough screening and adaptation of existing collaboration contracts is a must!
