by Lore Caneele and Mathieu Roelens
The law of evidentiary requirements laid down in our Civil Code needs to be changed. On 31 October 2018, the government submitted a bill on the law of evidence. Minister of Justice Koen Geens aims to make the Belgian Civil Code more in touch with people and contemporary society and is also addressing the issue of the law on evidentiary requirements.
In the first place, he is attempting to fulfil this by amending the legislation on documentary evidence above EUR 375.00. At present, a written contract must be drawn up with regard to the evidence for the sale of goods exceeding EUR 375.00. This amount will be increased to EUR 3,500.00 in the future. For cases up to 3,500.00 EUR, a text message or e-mail will suffice as proof.
He also wants to ensure that some unfair situations, such as the ones that exist today, are avoided in the future. In exceptional cases, it will therefore be possible to reverse the burden of proof. Suppose you want to withdraw money from a bank, but no money comes out of the machine. If the bank declares that the logbook has been erased, as things stand today, you will be in the wrong. In the future it will be possible to reverse the burden of proof in such exceptional cases because of the 'apparent unreasonableness'. The burden of proof in this example can therefore be placed on the bank.
Finally, the free provision of documentary evidence, as is currently applied to companies, will also be imposed on self-employed persons and farmers.
In a judgement of the Court of Appeal in Antwerp on 19 December 2016, it was ruled that a sale and purchase of real estate cannot be effected by e-mail. This judgement caused a lot of commotion at the time, mainly among real estate agents.
Alexander De Croo subsequently submitted a bill which makes it possible to conclude sales agreements by e-mail and this has since produced results.
Since 20 October 2018 it has been possible to have a contract concluded electronically if there is a document with an electronic signature. The electronic signature should be interpreted broadly, and includes scanned signatures, biometric signatures and digital signatures.
However, this does not mean that all proof of an electronic generation will be accepted. The legislator has expressly granted the court a margin of appreciation. In other words, the judge still has the power to reject the proof of the sale of a property. It does not therefore offer a comprehensive guarantee.
If you have any questions with respect to this matter, please do not hesitate to contact our experts directly or by e-mail: email@example.com.
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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