Commercial Contracts 2025 Comparisons

Under Belgian law, the general rules governing the choice of the applicable law for commercial contracts are set out in the Rome I Regulation, which is in principle directly applicable in Belgium.

Under Belgian law, commercial contracts are generally not subject to any specific form requirements and are validly concluded once the parties have reached an agreement on the essential elements of the contract. This means that, in principle, a contract can be formed orally, in writing or even tacitly through conduct demonstrating mutual consent.

In Belgium, commercial contracts are primarily governed by the Belgian Civil Code and the Code of Economic Law. The Civil Code contains the general rules on contract formation, validity, performance and remedies for non-performance, which, in principle apply to all type of contracts. The Civil Code also includes the rules on special contracts, such as sales leases, loans, mandates and service contracts, etc. 

The Code of Economic Law focuses on protective aspects of commercial relationships. It contains, among others, the rules on B2B and B2C protection, such as abusive contractual terms, as well as specific regimes applicable to certain types of contracts including agency agreements, distribution agreements, franchise agreements, etc.

Belgium is also a contracting state to the United Nation Convention on Contracts for the International Sale of Goods (CISG), which applies to international sales of goods between parties whose places of business are in different contracting states, unless expressly excluded. Currently, the main difference between Belgian law on sales contracts and the CISG is that the former provides for two distinct obligations for a seller to deliver a conforming good and a good that is free from invisible defects, whereas in the CISG there is only one concept: lack of conformity. It is expected that in the upcoming revision of the Belgian law on sales contract, in the new Book 7 of the Civil Code, the Belgian law on sales contracts will be amended so that it aligns with the concept of lack of conformity as it exists under the CISG.

Under Belgian law, certain types of contracts are subject to mandatory rules that limit the parties’ contractual freedom. While the Belgian Civil Code primarily contains suppletive provisions (which apply only in the absence of a different contractual agreement), several specific contracts and commercial relationships are governed by mandatory protective regimes set out in the Code of Economic Law and in other specific legislation.

Examples include:

• commercial agency agreements;
• exclusive and quasi-exclusive distribution agreements;
• consumer contracts – contain extensive mandatory protection on unfair terms, misleading practices and withdrawal rights;
• franchise agreements and other commercial relationships involving the right to use a commercial formula – these contracts are subject to precontractual information obligations; and
• employment contracts, commercial leases and insurance contracts, which are governed by special statues with mandatory provisions.

In a judgment of 7 April 2023, the Belgian Supreme Court ruled that the Act of 27 July 1961 on the “unilateral termination of exclusive distributorship agreements granted for an indefinite duration”, now part of Book X of the new Economic Law Code, which grants substantial protection to Belgian distributors in the event that their agreements with principals are terminated, cannot be considered an “overriding mandatory provision” of Belgian law within the meaning of Article 9 of the Rome I Regulation. The Belgian Supreme Court ruled that the Act is not a law for which respect is regarded as “crucial” by Belgium “for safeguarding its public interests, such as its political, social or economic organisation”. This means that for a distribution agreement that would otherwise have fallen within the scope of application of the Act, and which has international aspects (such as parties in different countries), a choice for a foreign law should in principle suffice to avoid the application of the Act on termination.

In Belgium, the rules on the choice of the applicable law for commercial contracts are governed by the Rome I Regulation, which has direct effect and applies uniformly across all EU member states. Under Article 3 of the Regulation, parties are free to choose the law governing their contract. This choice may be express (clearly stated in the contract) or implied (demonstrated by the terms of the agreement or the circumstances of the case).

If the parties have validly chosen an applicable law, Belgian courts will, in principle, give full effect to that choice even if the chosen law is not from an EU member state. However, this freedom is subject to certain limitations:

• where all other elements relevant to the situation at the time of the choice are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provisions of the law of that other country that cannot be derogated from by agreement;
• overriding mandatory provisions of Belgian law or of the forum may still apply, regardless of the chosen law;
• the application of foreign law may be refused on public policy, if its outcome would be manifestly incompatible with fundamental principles of Belgian law; and
• in B2C contracts or employment contracts, the parties’ freedom to choose the applicable law is restricted to ensure that the weaker party does not lose the protection afforded by the mandatory provision of their habitual residence.

If no valid choice of law has been made, the applicable law will be determined on the basis of the closest connection between the contract and a particular legal system. In practice, this usually means that the contract will be governed by the law of the country where the party performing the characteristic obligation, for example, the seller in a sale of goods or their service provider in a service agreement, has their habitual residence.

Belgian courts can give effect to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, insofar as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose, and to the consequences of their application or non-application (Article 9.3 of the Rome I Regulation). Overriding mandatory provisions are provisions for which respect is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under the Rome I Regulation.

In general, if one of the contracting parties is a Belgian party, and the other party is a non-Belgian party, the parties can choose to submit contractual disputes to a foreign jurisdiction. This question will most often be governed by the EU Brussels Ibis Regulation (more specifically, Article 25). However, depending on the jurisdiction of establishment and the nature of the forum choice (eg, exclusive or not), other legal instruments may be applicable (eg, The Hague Convention of 30 June 2005 on Choice of Court Agreements, which has become more relevant in practice post-Brexit when UK counterparties are involved).

Strictly speaking, even two Belgian contracting parties could choose to submit the relevant contract disputes to a foreign jurisdiction, provided that the conditions of Article 25 of the EU Brussel Ibis Regulation are fulfilled. Such a clause may, however, be subject to court scrutiny (eg, to assess whether such a forum clause is sufficiently balanced in the context of a B2B agreement).

Under Belgian law, parties to a contract – even if one or both are Belgian – can validly agree to submit disputes to arbitration, provided certain conditions are met. Articles 1676–1723 of the Belgian Judicial Code govern arbitration in Belgium. Under Article 1676 of the Belgian Judicial Code, any pecuniary claim and any non-pecuniary claim that can be settled may be submitted to arbitration.

Once parties validly agree to arbitration, Belgian courts will decline jurisdiction over disputes covered by that agreement (Article 1682 of the Belgian Judicial Code). Belgian courts may intervene only in supporting roles, such as (i) granting interim measures before or during arbitration or (ii) handling annulment or enforcement proceedings related to arbitral awards.

The arbitrators will have to determine the law applicable to the contract in a similar way as a state court would. If that assessment results in the application of mandatory law (eg, because a services agreement is requalified to a commercial agency agreement), the arbitrators will apply that mandatory law. In the Belgian Supreme Court decision of 7 April 2023 referred to under 1.5 Significant Court Decisions or Legal Developments, the Court confirmed that arbitrators can also be appointed to handle a dispute regarding mandatory distribution law even if the assessment of the applicable law would lead to a non-Belgian law being applicable.

In Belgium, a contract may, in principle, be concluded in any form unless the law expressly requires a specific form for validity. This means that, in principle, a contract can be concluded orally, in writing or even tacitly, through the conduct of the parties demonstrating their mutual consent. Written form, however, is strongly recommended for evidentiary purposes, especially in commercial relationships.

Certain types of contracts are subject to specific form requirements, such as being in writing (for example, consumer credit or real estate transactions) or complying with precontractual information formalities.

Yes. Belgian law recognises the concept of culpa in contrahendo. It refers to fault committed during the precontractual phase, for example, when a party breaks off negotiations abusively, misleads the other party, or fails to disclose essential information that the other party reasonably relied upon when deciding to contract.

The legal basis of this concept lies in Articles 5.68 and 5.65 of the new Belgian Civil Vode, which codify the long-standing case law of the Belgian Supreme Court. This principle is that the parties must act in good faith during negotiations. Although, each party is free to break off negotiations, this freedom must be exercised reasonably in good faith, an abrupt or abusive termination or negotiations may give rise to precontractual liability.

The remedies depend on the nature and seriousness of the fault:

• the injured party may claim damages to recover the loss suffered due to the legitimate expectation that the contract would be concluded;
• exceptionally, where negotiations were already at an advanced stage and one party acted in bath faith, reliance damages may cover costs incurred and sometimes loss of opportunity, but not lost profits from a contract that was never concluded; and
• in cases of misrepresentation or fraud, the aggrieved party may also seek annulment of any contract that was concluded under those conditions, together with compensatory damages.

Under Belgian law, standard terms and conditions form a part of a contract only if they have been validly incorporated; that is, if the other party had a real opportunity to take notice of them and accepted them, either expressly or tacitly.

In practice, this means that the terms and conditions must be communicated or made available to the other party at or before the conclusion of the contract. Merely referring to them after the contract has been concluded is not sufficient. Common ways to validly incorporate them include:

• express reference in the main contract (eg, “The General terms and Conditions attached hereto form an integral part of this agreement”) combined with actual delivery of the terms;
• reference in an offer, purchase order or order confirmation, provided the other party had access to the text and at least tacitly agreed to it; and
• established business practices between the same parties, where the terms have consistently governed previous dealings.

If both parties have validly incorporated their own general terms and conditions, any conflict between them will be resolved according to the battle of the forms principle (see 3.6 Battle of Forms).

Belgian law does not contain specific provisions governing the use of standard terms and conditions. General principles of contract law apply equally to standard terms and individually negotiated agreements.

In addition, the use of standard terms is subject to specific protective frameworks. For instance, in B2B contracts, the rules on unfair terms between enterprises prohibit clauses that create a manifest imbalance between the rights and obligations of the parties. These rules include a blacklist of clauses that are absolutely prohibited and a grey list of clauses presumed to be unfair, unless proven otherwise. Under consumer protection legislation, similar safeguards apply in B2C contracts.

Under Belgian law, specific clauses of standard terms and conditions may be set aside or declared null and void if they create an unreasonable disadvantage or a significant imbalance between the rights and obligations of the parties.

• In B2C contracts, this control is based on Book VI of the Code of Economic Law, which prohibits unfair terms that are contrary to good faith or that cause a manifest imbalance to the detriment of the consumer. Clauses falling within the “black” or “grey” lists are either automatically void or presumed unfair.
• In B2B relationships, Book VI, Title 3/1 of the same Code extends this fairness control to commercial contracts. It prohibits clauses that cause a significant imbalance, such as those that allow a party to unilaterally modify key terms (price, delivery, etc), limit liability excessively or impose disproportionate obligations on one party.

Under Belgian law, the “battle of the forms” refers to the situation where, during contract negotiations, each party refers to its own standard terms and conditions, and those sets of terms conflict. For example, a seller may include its general terms in its offer, while the buyer refers to its own purchasing terms in its order. The issue is whether a contract is validly formed and, if so, which standard terms apply.

The matter is now expressly regulated by Article 5.23 of the new Belgian Civil Code (which entered into force on 1 January 2023). This article adopts the so-called “knock-out rule”. Under this rule:

• a contract is considered concluded when the parties reach agreement on the essential elements (such as price, object and quantity), even if their respective general terms conflict;
• the conflicting clauses in the parties’ standard terms are set aside and do not form part of the contract; and
• the contract is then governed by the non-conflicting provisions of the parties’ terms and by the suppletive (default) rules of Belgian law to fill any gaps.

This approach replaced the former “last-shot” doctrine sometimes applied in practice, under which the terms of the party who sent the last document before performance could prevail.

Under Belgian law, most commercial contracts do not require an original (wet-ink) signature or a notarial deed to be validly concluded. The general principle is freedom of form, meaning a contract is valid once the parties have reached an agreement on its essential elements, regardless of the form it takes.

Regarding electronic signatures, Belgian law fully recognises their validity in both civil and commercial contracts. In line with the EU Electronic Identification, Authentication and Trust Services Regulation (Regulation (EU) No 910/2014), an electronic signature has the same legal effect as a handwritten signature, provided it satisfies the applicable authenticity and integrity requirements. A qualified electronic signature enjoys a presumption of legal equivalence to a handwritten one.

Commercial contracts in Belgium do not require official registration to be valid or enforceable. Nevertheless, registration may be required in certain cases for evidentiary, publicity or tax purposes, such as:

• commercial leases, which must be registered with the tax administration; and
• security interests, such as pledges on business assets or movable property, which must be registered in the National pledge Register to be opposable to third parties.

Under Belgian law, mutual consent is the essential foundation of any contract, including commercial contracts. However, to be legally valid and enforceable, a contract must also meet the general validity requirements set out in the Belgian Civil Code.

In addition to mutual consent, the following conditions must be fulfilled:

• capacity – both parties must have the legal capacity to contract;
• a defined and lawful object – the obligations arising from the contract must have a sufficiently determined or determinable object and must be possible and lawful; and
• a lawful cause (reason) – the contract must pursue a lawful purpose, which cannot contravene mandatory law, public policy or good morals.

The main different laws to be obeyed in B2B and B2C contracts are the Civil Code and the Code of Economic Law.

Under Belgian law, B2C contracts are governed by a combination of the general contract law principles contained in the Civil Code and a set of specific protective rules under the Code of Economic Law. The Civil Code provides the general framework for all contracts, including rules on consent, validity, performance and remedies, while the Code of Economic Law adds a layer of mandatory consumer protection that traders must respect when contracting with consumers.

The overarching goal of these consumer protection rules is to ensure that the consumer, as the economically and legally weaker party, can make well-informed and fair decisions and is safeguarded against abuse or imbalance in the contractual relationship.

One of the key protections is the right to clear, accurate and prior information. Before a contract is concluded, the trader must inform the consumer about all essential aspects of the product or service: its main characteristics, the total price including all charges, the trader’s identity and contact details, the duration and terms of the agreement, and the conditions for termination or withdrawal. This information must be presented in a clear and comprehensible manner, so that the consumer can make an informed choice.

Consumers are also protected against unfair commercial practices, such as misleading advertising, omission of key information or aggressive sales methods. Any commercial practice that distorts or is likely to distort the consumer’s economic behaviour is prohibited. In addition, B2C contracts must not contain unfair terms that create a significant imbalance between the rights and obligations of the parties to the detriment of the consumer. Clauses that, for example, exclude or limit the trader’s liability, allow unilateral changes to price or performance, or restrict the consumer’s legal remedies may be declared null and void. Belgian law distinguishes between “blacklisted” clauses, which are automatically void, and “grey-listed” clauses, which are presumed unfair unless the trader proves otherwise.

Consumers also benefit from a right of withdrawal in the case of distance contracts (such as online purchases) and off-premises contracts (such as doorstep sales). This right allows the consumer to cancel the contract within 14 days after delivery or conclusion, without giving reasons and without cost, apart from any return shipping expenses.

Another essential protection concerns warranty rights. When a consumer purchases goods, they are entitled to a two-year legal warranty against defects or non-conformity. If the goods do not meet the agreed specifications or are defective, the consumer may demand repair, replacement, a price reduction or reimbursement. These warranty rights are mandatory and cannot be waived or limited by contract.

The core concept of liability in Belgian law is founded on the principle of fault and reparation; the idea is that anyone who cases damage to another through a fault, negligence or breach of an obligation must repair that damage.

The goal of the rules on liability is, therefore, to restore the injured party to the position they would have been in had the wrongful act not occurred, rather than to punish the wrongdoer.

Belgian law does not recognise punitive or exemplary damages. The purpose of liability under Belgian law is compensatory, not punitive: damages are intended solely to restore the injured party to the financial position they would have been in if the harmful event or contractual breach had not occurred. Compensation cannot exceed the actual loss suffered, and there is no concept of punishment or deterrence through increased damages.

As to the extent of recoverable damages, Belgian law distinguishes between several categories of loss, all of which must be certain, direct and casually linked to the breach or wrongful act:

• material damage – including both actual loss and loss of profit;
• moral damage – such as reputational harm or emotional distress, which can also be compensated when proven; and
• bodily injury – includes medical costs, loss of income and suffering.

There is no statutory ceiling or maximum amount for liability under Belgian law. However, compensation is limited by the principle of full but not excessive reparation; the injured party may not be placed in a better position than before the loss. In contractual liability, damages are also limited to foreseeable losses at the time of contract formation.

Under Belgian law, the general principle of liability is fault-based; a person is liable only if a causal link between fault and damage is established. However, Belgian law also recognises a limited number of strict liability regimes, where liability arises without fault. In such cases, the person or entity responsible must compensate the damage even if no negligence or wrongful conduct can be proven.

Examples of liability without fault include:

• liability for things in one’s custody – the custodian of a thing (for example, a building, vehicle or machine) may be held liable for damage caused by that thing if it was defective or presented an abnormal characteristic;
• liability of parents, teachers and employers – parents are liable for damage caused by their minor children, and teachers and employers are liable for acts of their pupils or employees committed in the course of their duties, even without personal fault, subject to possible recourse actions; and
• liability for defective products – producers are strictly liable for damage caused by defective products under the Product Liability Act, which implements EU Directive 85/374/EEC.

Under Belgian law, contractual limitation or exclusion of liability is generally permitted. However, this freedom is not absolute. Belgian law sets clear boundaries to ensure fairness:

• a limitation clause cannot exclude liability for fraud or wilful misconduct;
• a party cannot validly limit or exclude liability for its own fraud, or for damage to life or physical integrity caused by fault; and
• clauses that would render a party’s obligations illusory or deprive the contract of its cause are also invalid.

Article 5.226 of the Belgian New Civil Code provides that force majeure exists in case of a “non-imputable impossibility for the debtor to perform his obligation”. To assess whether force majeure can be invoked in a particular situation, the unforeseeable and unavoidable nature of the impediment to perform should be taken into account.

Under Belgian law, the concept of force majeure is implied in every contract, even in the absence of an express clause regulating it. However, the parties remain free to make a contractual arrangement on force majeure, as this is not mandatory law (by modifying the definition of force majeure, determining the conditions and effects of a party invoking force majeure, etc).

If the force majeure event renders the performance of the debtor’s obligation temporarily impossible, said performance is suspended for the duration of the FM event. The counterparty will in turn be entitled to also suspend the performance of its own obligations, following which an extension of time for performance may be granted automatically by force of law or by an express force majeure clause in the contract. However, if the force majeure event is permanent, the debtor will be freed from its contractual obligation.

Generally, it is standard practice for Belgian law commercial contracts to include a clause providing relief from performance in circumstances outside a party’s control (such as a force majeure clause). The absence of such a clause would, however, not prevent the claiming of relief under the default force majeure rules under Belgian law, if applicable.

Article 5.74 of the new Belgian Civil Code expressly recognises the principle of hardship. This provision allows a party to request the renegotiation of a contract when an unforeseen change of circumstances makes the performance of its obligations excessively burdensome, and the party did not assume that risk.

If the renegotiation fails within a reasonable period, either party may request the court to adapt the contract to restore its balance or, if adaptation is not possible, to terminate the contract at a date and on the conditions determined by the court.

This mechanism applies by default in contracts governed by Belgian law. However, the parties may exclude it or modify its application.

There is no widespread standard practice on including hardship clauses (or not) in Belgian law contracts; it depends on the specific contract.

Under general Belgian law, when a party fails to perform a commercial contract (non-fulfilment, late fulfilment or breach of terms), the law provides the following main remedies:

• specific performance – the creditor may demand that the debtor performs as agreed, unless performance is impossible or would be unreasonable;
• monetary damage – the creditor can claim compensation for losses caused by non-performance;
• termination of the contract – the creditor may request judicial termination or unilaterally terminate the contract in case of a serious breach;
• suspension of own performance – a party may suspend its obligations if the other party fails to perform or if it is evident that performance will not occur on time; and
• replacement by a third party – after notice, the creditor may have the obligation performed by a third party at the debtor’s expense.

Statutory warranties also apply, particularly in sales contracts.

• The statutory warranty of conformity: A legal guarantee that a consumer product must match what was contractually promised and may be reasonably expected. The product must work properly, be fit for its intended use and correspond to the seller’s description. If it does not, the seller must repair, replace or refund the product.
• Warranty against latent defects: Protects the buyer if the goods have hidden defects that make the products unfit for their intended use or significantly reduce their value. The seller may rescind the sale or seek a price reduction, and may also claim damages if the seller knew of the defect (see also 7.2 Deviation From Warranty and Remedy Provisions by Contract).
• Product liability: Belgium’s product liability regime, which is based on EU Directive 85/374/EEC, holds manufacturers strictly liable for defective products that cause harm, without requiring proof of fault. Liability applies to producers, importers, own branders and, in some cases, suppliers.
• Tortious liability: A manufacturer or seller can also be held liable under general tort rules if (i) the claimant suffered damage, (ii) the manufacturer or seller committed a fault and (iii) there is a direct causal link between the fault and damage.

Belgian contract law is based on the principle of freedom of contract, meaning that parties are, in principle, free to determine the content of their agreement. Most rules governing commercial contracts (in a B2B context) are of a suppletive nature, so the parties may deviate from them by agreement. However, this contractual freedom is not unlimited. Parties must always respect mandatory law and public policy. Certain limitations apply. For example:

• Belgian B2B legislation – requires a certain degree of fairness and contractual balance and does not allow the exclusion of liability for main obligations of the contract;
• parties are not allowed to exclude or limit liability in the event of (i) fraud, (ii) physical injury or death, (iii) product liability and (iv) hidden defects (where professional sellers are presumed to have knowledge of such defects and are, therefore, considered to act in bad faith if they exclude their liability); and
• in B2C relationships, the rules on legal warranties and remedies are mandatory in nature, and any clause that excludes or limits the consumer’s statutory rights, such as the warranty on conformity, is null and void.