The new Book 5 of the Belgian Civil Code, published on 1 July 2022 in the Moniteur belge and entered into force on 1 January 2023, contains a new contribution in article 5.90, paragraph 2. This is the concept of anticipatory breach, which has its origins in common law. Prior to the publication of the new Civil Code, anticipatory breach was applicable in Belgium via the United Nations Convention on Contracts for the International Sale of Goods and was further defended by some legal writers.

Resolution for anticipatory breach is the sanction that can be used by a creditor faced with a debtor who it is certain will not perform his contractual obligations at the agreed time. The contractual obligation as such is not yet due, and the non-performance has not yet occurred.

Resolution for anticipatory breach is, however, distinct from the so-called exceptio timoris, which is also enshrined in the new Book 5, article 5.239, §2. Whereas article 5.90 provides for definitive resolution of the contractual relationship, the exceptio timoris is a temporary defense, allowing a party to suspend performance of his obligations temporarily when he fears a failure of performance on the part of the other contractor.

In order to benefit from the sanction of resolution for anticipatory breach and to fall within the material scope of the provision, it must concern a contractual obligation affected by a term. Next, the so-called strict conditions of article 5.90, paragraph 2 are as follows:

• the existence of exceptional circumstances
• formal notice must be given to the debtor to provide sufficient guarantees within a reasonable period of time
• failure to perform the obligation when due is manifest
• failure to perform would have serious consequences

The need to introduce such a sanction into the new Civil Code is still debated in academic circles. Some authors say that a combination of exceptio timoris, which already existed in the old Civil Code, and the principle of good faith would have been sufficient to achieve the same result. However, a large majority of legal writers are of the opinion that resolution for anticipatory breach allows a rapprochement with foreign national private law, international private law instruments and soft law. In addition, the purpose of anticipatory breach seems to be to protect the creditor against manifest future damage and to allow him to contract elsewhere, rather than to punish the debtor.

For more information on this subject, or to review your terms and conditions, please do not hesitate to contact our team.

With our best regards
The Cairn Legal team