On 16 July 2026, the Belgian Parliament adopted Book 7 of the new Civil Code, introducing a comprehensive overhaul of several key contractual relationships.
In our first article (read it here), Simont Braun provided an overview of the reform, its scope and its expected entry into force in September 2027.
This second article examines a question that is particularly relevant for the real estate and construction sectors: under the new Book 7, when should a construction contract be classified as a sale and when should it qualify as a service contract?
Sale or service?
Article 7.2.2 of Book 7 introduces criteria aimed at distinguishing sales contracts from service contracts.
As a general rule, applicable to both movable and immovable goods, a contract providing for the transfer of ownership of a good to be manufactured, produced or constructed in exchange for a monetary price qualifies as a sale , even where the good does not yet exist when the contract is concluded.
However, the agreement qualifies as a service contract where the client supplies an essential part of the necessary materials or where the good is specially manufactured, produced or constructed for the client’s needs.
The mere possibility of selecting among predetermined options, such as kitchens, tiles or finishes, is not sufficient to trigger classification as a service contract. The provision expressly confirms that predetermined choices, such as a choice among available colours or sizes, and the standardised adaptation of a standardised good remain within the sales regime.
Off-plan projects
The distinction is particularly relevant in the context of off-plan developments.
Subject to the specific rule for combined land-and-construction transactions described below, the contract may qualify as a service contract where the building is specially designed and constructed for the purchaser’s needs.
By contrast, where the project has already been designed by the developer and the purchaser merely selects among predefined options, the agreement will generally remain a sale.
Land and construction
By exception, Book 7 also clarifies situations where the same party both carries out construction works and transfers ownership of (or another real right in) the land or volume concerned.
In such cases, the contract qualifies as a sale irrespective of whether the structure is standardised or bespoke.
This clarification is particularly relevant for many real estate development structures.
Why does the classification matter?
The distinction between a sale and a service contract is not merely theoretical.
In a sale, the seller must deliver a conforming good. This is a warranty obligation: where a good is non-conforming, the buyer does not need to prove fault on the seller’s part, and the seller cannot be discharged on the basis of force majeure or a lack of knowledge of the non-conformity.
In a service contract, the provider’s obligations are not, merely by reason of that classification, warranty obligations. Liability depends on the nature of the obligation: for an obligation of means, the client must prove a breach of the required standard of care; for an obligation of result, the client must establish that the promised result was not achieved. The applicable liability regime may therefore be less strict than the seller’s conformity obligation.
Ten-year liability also applies to sales
Article 7.4.57 preserves the well-established regime of ten-year liability for serious defects affecting the stability or structural integrity of a structure. This rule expressly applies to architects, contractors and engineers.
Liability remains fault-based and contractual exclusions or limitations remain prohibited. Parties may, however, agree to extend the protection afforded by the regime.
An important rule is however introduced for real estate projects. Even if it qualifies as a sale, the ten-year mandatory liability will still apply to the construction, transformation or demolition of an immovable good. This new rule applies, in particular, in the case where a property developer undertakes to construct a building and to transfer its ownership to the buyer, along with the land on which the construction is built. Since such contract qualifies as a sale, the ten-year liability would normally not apply. This was not a problem under the old Civil Code since, as the professional seller was deemed to know the defects of the sold good, any exemption of liability would have been null and void. Under the new law, exemption clauses are in principle admissible even in favour of professional sellers. This is why the legislator has considered it necessary to provide for the mandatory application of the ten-year liability regime in this precise case.
Preparing for the future
Although Book 7 is expected to become applicable only in September 2027, businesses active in the real estate and construction sectors would be well advised to begin assessing its implications now.
Real estate developers, contractors, architects, engineers and investors may wish to review their contractual structures and project documentation in light of the new classification criteria set out in Article 7.2.2.
Particular attention should be paid to off-plan developments, bespoke construction projects and agreements combining construction obligations with transfers of property rights, as the qualification of a contract as a sale or a service contract may directly affect conformity obligations and liability exposure.
Early preparation can help ensure that contractual arrangements, project documentation and standard contract templates remain fit for purpose once the new framework becomes applicable.
Further insights to come
In the coming months, Simont Braun will continue to examine the practical implications of Book 7 for businesses operating in Belgium. Further insights on specific aspects of the reform will be shared via our LinkedIn page.
In parallel, our lawyers Thomas Derval, Rafaël Jafferali and Charles-Edouard Lambert are coordinating a conference dedicated to the reform , as well as a collective publication scheduled for early 2027.
Questions about Book 7 and its impact on real estate or construction projects? Please feel free to contact Alexia Faes at Simont Braun: Alexia Faes.
This newsletter does not constitute legal advice or a legal opinion. Please consult with a legal counsel before taking any action based on the information provided.
Authors:
- Alexia Faes, Simont Braun
