Liability in the construction industry: what does the new Book 6 bring?
by Charlotte Humblet and Julie De Roy
In previous articles, we have already explored the key principles of the new Book 6 of the Civil Code and the new liability rules when contracting ‘auxiliaries’ (staff, subcontractors, etc.) in the execution of contracts. In this article, we focus specifically on the construction sector and how general contractors and subcontractors will have to handle the execution of projects and the associated risks differently.
What do the new liability rules mean for the construction sector?
As a general contractor, you are responsible for the overall execution of the project. The new legislation can, however, be advantageous to the general contractor, as the client (builder) will now be able to bring a direct claim for damages against the subcontractor.
This means that subcontractors will now bear greater ultimate responsibility for their work. Previously, subcontractors’ liability was often limited, and the client had very restricted options to hold them directly liable.
What does this mean for (sub)contracting agreements in construction?
It is crucial to review your (sub)contracting agreements and work methods. Clear arrangements regarding responsibilities are essential to prevent future issues. Pay attention to:
Clear agreements: Make sure your contracts are legally valid and fully enforceable. Don’t overlook your quotations and general terms and conditions, and avoid contradictions between the general contractor’s and subcontractor’s conditions.
Liability: Clearly define who is liable for what, how damages will be compensated, and to what extent your liability can be limited or excluded.
Insurance: Check whether your insurance policies sufficiently cover the new risks. Subcontractors/auxiliary persons are usually not covered under the general contractor’s insurance policy.
Supervision: Regular inspections of the work carried out by subcontractors and/or staff can help detect and prevent problems early on.
A practical example
Imagine you’re a general contractor tasked with building a villa for a client. You hire a subcontractor to install a swimming pool in the garden. During the execution, an employee of the subcontractor makes a mistake in the pool’s foundation, causing leaks and damage to the structure. This leads to delays and additional costs to fix the issue.
Under the old law (before January 1, 2025)
Due to the quasi-immunity of the executing agent and the prohibition on concurrent claims, the client could not bring a direct extracontractual claim against the subcontractor—unless very strict conditions were met (e.g., the subcontractor committed a criminal offense or acted outside the scope of the contract).
In practice, this meant the client had no choice but to hold the general contractor liable, even if they were not directly responsible for the subcontractor’s mistake. This limited the possibilities and increased the financial risk for the client, who usually had to take the general contractor to court first. Only after a ruling could the general contractor seek recourse from the subcontractor. Additionally, contractual exoneration clauses from the general contractor complicated the process of claiming damages caused by subcontractors, often putting the project owner in a difficult position.
Under the new law (since January 1, 2025)
The client now has more avenues for recovery and can:
Immediately bring an extracontractual claim against the subcontractor, provided the fault and damage are proven; or
Bring a contractual claim against the general contractor.
This gives the client more flexibility and the ability, in principle, to seek direct compensation from the subcontractor without having to go through the general contractor first.
There are still limitations: The subcontractor can still invoke the same defenses that they could use against the general contractor, such as possible exoneration clauses in their contract with the general contractor.
Important nuance: If the subcontractor’s mistake was intentional or harmed the physical or psychological integrity of the client, they cannot escape liability—regardless of what the subcontract says.
Do the new rules apply to all cases?
The new rules only apply to incidents that occur after January 1, 2025. Events that took place before this date remain subject to the old regulations.
How can you ensure that you are well prepared?
It is important to align your contracts and work methods with the current legislation to avoid legal and financial issues and to verify whether you still have the right insurance coverage.
Ask yourself the following questions to get a first sense of where your risks might lie:
I am a general contractor | I am a subcontractor | |
|---|---|---|
Which contracts do I use? | Are these legally valid? Are you sure that your contracting parties (client/subcontractor) are bound by them? To what extent can you or do you want to limit your own liability and/or that of your subcontractors? | Are you working under the general contractor’s contract conditions or your own? Are these legally valid? How certain are you that the client cannot hold you directly liable? |
What if mistakes happen? | What happens if a subcontractor makes a mistake? What would your liability look like if a problem arose today involving a subcontractor? | What happens if you or one of your employees makes a mistake? What would your liability be in the event of an issue with work you are performing as a subcontractor? |
Are my insurances sufficient? | Does your insurance provide the right coverage for the liability of both yourself and the subcontractor? Check whether your insurance policy covers the risks associated with subcontractors and whether it is up to date with the new legislation. How quickly can you file claims, and are they covered? | Does your insurance provide the right coverage for the liability of both you and your employees? Check whether your insurance policy covers the risks and whether it is up to date with the new legislation. How quickly can you file claims, and are they covered? |
Need advice?
Do you have questions about the impact of Book 6 on your construction business? Want to have your contracts or insurance policies reviewed? Contact us to discuss your specific situation. We’ll gladly provide tailored advice so that you, as a general contractor or subcontractor, are fully prepared.
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Charlotte Humblet
Advisor Legal Charlotte.Humblet@vdl.be
Julie De Roy
Team Manager Legal julie.deroy@vdl.be
Disclaimer
In our opinions, we rely on current legislation, interpretations and legal doctrine. This does not prevent the administration from disputing them or from changing existing interpretations.
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