The remedies applicable for non-performance: The current situation of the Belgian and French laws

By January 19, 2022 No Comments

Chapter 1. Belgian Law

1. In Belgian law, specific performance is the rule. If a debtor has not performed one of his contractual obligations, he is exposed to the legal sanctions provided for in the Civil Code:

• Specific
performance •
Performance by equivalent • Judicial termination of the contract with the compensation of the damages based on contractual liability

This faculty of the judge can be found in Article 1184 of the Belgian Civil Code. This legislation gives an option to the creditor : either the specific performance, either the performance by equivalent.

2. Those are the powers of the judge when there is no contractual clause in that regard. As the agreement is considered by the parties to be the law, the judge must enforce the binding force of the agreement. This binding force is imposed on each contracting party, both the debtor and the creditor.

3. We will also mention a draft of reform of the Civil Code. The latter aims first of all to get rid of the lacunar character of the current Civil Code by transposing into law the case law in force or by reformulating existing articles in order to clarify their scope.

SECTION 1. What is a breach?

4. The material breach is not defined in Belgian Law. In order to determine whether the debtor’s conduct or forbearance is faulty, it is first necessary to identify the contractual obligations incumbent upon him. Let’s note that it is a necessary but not sufficient precondition. In other words, the debtor cannot be accused of any fault if he has not breached one of his obligations. Therefore, it is necessary to specify the scope and content of these obligations. They are not all of the same intensity.