Main changes:
- Abolition of the prohibition on concurrence: Until now, it was forbidden to file a non-contractual claim for damage caused by a contractual breach, except in exceptional cases. As of 2025, however, injured parties can choose between a claim on a contractual or non-contractual basis. The basic principles of damage, fault, and causal link remain applicable.
- Abolition of the quasi-immunity of auxiliaries: Auxiliaries, such as subcontractors, employees, and company directors, were previously protected against liability claims from the co-contractor of their principal. From 2025 onward, injured parties may, if the requirements for non-contractual liability are met, file a claim directly against these auxiliaries.
- Changes illustrated by an example:
- What was the previous situation? Imagine a customer (A) has a contract with a company (B) to carry out a task, such as renovation works. Company B engages an auxiliary (C) to perform part of the task, for example, digging a swimming pool. If auxiliary C makes a mistake, such as causing water damage, customer A could not hold auxiliary C directly liable. This is because there was no direct contract between customer A and auxiliary C.
- What is changing now? With the new legislation, customer A can now hold auxiliary C directly liable for mistakes made during their work. This means that auxiliaries, such as employees, subcontractors, or service providers, can now be held personally responsible for their errors, even if there is no direct contract between the injured party and the auxiliary.
- Why is this important? This change offers more protection for the injured party (customer A) as they now have more ways to seek compensation. It prevents situations where the injured party is left empty-handed if the company (B) goes bankrupt, for example.
What can you do?
- Contractual arrangements: It is becoming increasingly important to make clear contractual agreements between all parties involved. These agreements determine to what extent and under what conditions an auxiliary can be held directly liable by the principal in the future, and whether the auxiliary can invoke certain defenses, such as limitations of liability. Consult your legal advisor or an attorney for this.
- Insurance: Check how you are insured for situations where a claim for damages may be filed. This can be through the principal's insurance policy or through your own policy. Make sure the definition of ‘insured parties’ in the policy is as broad as possible so that employees, self-employed workers, interns, temporary workers, volunteers, etc. are covered. However, having your own insurance policy offers the best protection.
- Directors' liability insurance: As a director of a company, you can be held personally liable for mistakes made in the performance of your directorial duties. Suitable directors' liability insurance can protect your personal assets against high defense costs. Given the increased liability risk, it is advisable to review the insured sums and increase them if necessary.
Need more information?
For more information, you can of course always contact your Account Manager.
