As previously reported, Book 7 of the Civil Code concerning specific contracts was approved by the Chamber on 16 July 2026. This contribution focuses on the most significant changes affecting sales contracts.
A single concept of conformity: no more distinction between apparent and hidden defects
One of the most significant innovations is the introduction of a single concept of conformity. Under the former law, the nature of the defect determined which regime applied: apparent defects and non-conforming deliveries were subject to different rules (and different time limits and remedies) from those applicable to hidden defects. In practice, this distinction frequently gave rise to disputes. Book 7 of the Civil Code abolishes this dual regime: a single uniform set of rules will apply to all conformity defects. A good sold is either conforming or non-conforming.
A good is conforming if it corresponds (i) to what the contract stipulates, and (ii) to what the buyer may reasonably expect (taking into account, among other things, the nature of the good, its normal lifespan and ordinary use).
In practical terms, the obligation to deliver a conforming good means that the seller is liable for any conformity defect that was present at least in embryonic form at the time of delivery, even if the conformity defect only comes to light later, even if the seller could not have been aware of it, and even if it was caused by force majeure. Conformity defects arising only after delivery, however, are at the buyer’s risk.
New remedies regime for conformity defects
If the seller fails to deliver a conforming good, the buyer may resort to the remedies for breach of contract under Book 5 of the Civil Code: specific performance (including repair of the defect or replacement of the good), damages, price reduction, suspension of the buyer’s own performance, or termination of the sales contract.
A further change is that the separate remedies regime for hidden defects is abolished: under the former law, the buyer could in principle choose between termination and price reduction in the case of a hidden defect. There was no right to repair or replace the defective good. Under the new law, repair or replacement may be a remedy. The right to damages also changes: the buyer is in principle entitled to full compensation for the loss suffered, irrespective of whether the seller acted in good faith or bad faith.
New time limits: the importance of acting promptly
Book 7 of the Civil Code provides for four time limits in cases of conformity defects:
- A warranty period of ten years from delivery: only conformity defects that come to light within this period give rise to a right to invoke the seller’s warranty.
- A notification period: the buyer must notify the seller of the conformity defect within a reasonable time after discovering it. Whether a period is reasonable will depend on the circumstances of the particular case, taking into account, among other things, the nature of the good, the nature of the conformity defect, the capacity of the parties and trade usages. For consumers, this period is at least two months from the date on which the defect was established. If the buyer fails to notify within that period, the buyer in principle loses the right to rely on the conformity defect, unless the seller was aware of the conformity defect.
- A limitation period of two years from the aforementioned notification within which to bring an action. This limitation period is, however, suspended during sufficiently serious negotiations between the parties or during judicial or adversarial extrajudicial expert proceedings.
- An absolute forfeiture period: the buyer’s right lapses in any event ten years and three months after delivery. An action must therefore be brought within this period in any case.
In other words, timely action that can be demonstrated becomes crucial for a buyer faced with a conformity defect.
Liability for conformity defects: exclude or limit?
Since most sales rules are default rules, parties may contractually determine, limit or extend the scope of liability for conformity defects. New is that even the seller-manufacturer and the specialised seller may in principle exclude liability for hidden defects: this represents a departure from the case law under the former Civil Code, which held otherwise.
This freedom of contract is, however, subject to a number of important limitations. The conformity rules for consumer sales are mandatory for the benefit of consumers. In addition, the general restrictions applicable to limitation of liability clauses continue to apply. In this respect, a party cannot, for example, exclude liability for its intentional misconduct or for breaches affecting life or physical integrity (and, soon, mental integrity). Nor may the contract be deprived of its substance. Careful drafting of warranty and liability clauses therefore remains essential.
Risk passes only upon delivery
Under the old sales law, risk in principle passed with ownership and therefore often did so upon conclusion of the contract, even if the good had not yet been delivered. This was sometimes perceived as unfair: if a good that had been purchased but not yet delivered was destroyed by force majeure (for example, by fire), the buyer remained liable for the purchase price.
Under the new rules, however, risk will pass only upon delivery of the good. If the good is destroyed by force majeure before delivery, the buyer is no longer obliged to pay the price.
Parties may also make contractual arrangements regarding the transfer of risk, as is already common practice in certain contexts.
Sale of another’s property is no longer a ground for nullity
The sale of another’s property is no longer a ground for annulment of the sale. The buyer’s protection will henceforth be provided through the warranty against eviction. The remedies for breach of contract (including termination) will therefore be available against a seller who sells another’s property.
Simplification of lesion in the sale of immovable property
Regarding lesion in the sale of immovable property, the threshold is simplified: lesion arises when the seller receives less than 40% of the normal sale value and is therefore prejudiced by more than 60%. The threshold of 7/12 is therefore abandoned. In addition, the procedure is simplified. For instance, a panel of three experts is no longer required.
Authors:
- Thijs Tanghe, Eubelius
- Siel Demeyere, Eubelius
- Emma De Clercq, Eubelius
