Precedents from the Belgian Supreme Court (“Cour de cassation/Hof van Cassatie”) have long consecrated the theory of “qualified lesion”, which could be applied when a contracting party abused from the other party’s position of vulnerability (abuse of the other party’s weakness, inexperience, thoughtlessness, ignorance, needs or passions) upon concluding a contract.

In such cases, there had to be a clear and definite economic imbalance between the two contracting parties, the existence of which was left to the judge’s sovereign assessment.

This theory based on precedents has finally been turned into statutory law, as Book V of the new Civil Code now comprises an article 5.37 regarding the “abuse of circumstances”.

According to the legal definition, there is an abuse of circumstances “when upon the conclusion of a contact there is a flagrant imbalance between the parties’ respective contractual obligations resulting from the abuse by one of the parties of the circumstances linked to the situation of weakness in which the other party finds him/herself”.

When the abuse of circumstances is established, the weaker party can then petition the judge for an amendment of its obligations or even, in the case of a decisive abuse, for an annulment of the contract on grounds of relative nullity.

While this provision now enshrines a legal principle that has long been precedented, it has the merit of finally providing a penalty against the abuse of circumstances, an aspect that was still subject to debate when applying the theory of “qualified lesion”…

Finally, we would also like to point out that Article IV.2/1 of the Code of Economic Law, which came into force on 1 June 2020, also prohibits the abuse of economic dependence between companies.

For more information on this subject, please feel free to contact Mr. Antoine DECLEVE.