In principle, an invoice between companies is due and payable when it has been accepted (i) explicitly or (ii) tacitly, i.e. when it has not been disputed within a reasonable period of time (art. 8.11 §4 Belgian Civil Code). Whether the invoice has been timely disputed depends on the appreciation of the judge. In the past, some judges have decided that 7-8 days is not enough / unreasonably short.
An accepted invoice, in turn, creates a legal presumption of (proof of) the underlying agreement, which can however be rebutted for serious and justifiable reasons (e.g. an employee has mistakenly accepted an invoice, which does not correspond with the agreed price, quantity, description, date).
The aforementioned basic principles were put to the test in a judgment of the court of Tournai of 26 January 2023. In this case, two companies entered into annual agreements for advertising and search engine optimization services. Each time, the order form for the annual renewal indicated “no automatic renewal of the contract”. Come 2021, the order form was sent following a telephone conversation between the parties, but was not signed. Subsequently, an invoice was issued, but not paid…
Two questions before the judge were essential in assessing whether the invoice was due and payable i.e.:
(i) acceptance of the invoice: since the invoice and the reminders had never been contested by the buyer (within a brief delay), the invoice was considered tacitly accepted;
(ii) accepted invoice proof of the underlying agreement: since renewal of the agreement needed to be signed and explicitly agreed upon (exception to the normal consensual nature of contract conclusion), which was not the case here, there is no proof of the underlying agreement.
Takeaways for companies claiming/receiving invoices
- in case of disagreement, dispute the invoice as soon as reasonably possible (risk of tacit acceptance if you wait too long);
- clearly indicate the reasons for disagreement with the invoice (risk of tacit acceptance if not clearly disputed);
- if the invoice was not timely contested, verify whether there are serious and justifiable reasons that the invoice is / is not due and payable in light of the underlying agreement (refutable legal presumption that an accepted invoice proves the underlying agreement).
Authors:
Pieter-Jan Aerts and Chelsey Thijs (EY Law)
