Geens´s jump - Recodification of property law and the law of obligations

Geens´s jump - Recodification of property law and the law of obligations

With his memorandum of 6 December 2016 ("The jump to the law for tomorrow – recodifying the basic legislation"), Minister of Justice Koen Geens unveiled plans for a thorough reform of the company law, the civil law and the criminal law. Our firm has been closely following the developments in the first two fields in particular.

In this newsflash we examine the reform of the civil law, and more specifically of property law and the law of obligations.

Minister Geens is striving to thoroughly overhaul the above-mentioned branches of the law, in part so as to offer Belgian citizens greater legal certainty. Many of today’s provisions are outdated or are difficult to find due to the fragmentation of the legislation, are no longer adapted to the many technological developments or have been fleshed out by the case-law to such an extent that the legislative text no longer adequately covers their full import. The reform of the civil law in general must restore the Civil Code’s central place in private law and contribute to a greater predictability of legal disputes.

With regard to property law, one wishes to adopt a more functional approach. The provisions of the property law must become more transparent and meet the needs of modern society and correspond to the way in which property is being used. More freedom will also be given to contracting parties, including in terms of the duration and termination possibilities of real rights. For example, the right of superficies and the right of long lease will be reformed, in order to correspond to “the developments of the three-dimensional real-estate property of the 21st century”. The usufruct too will be adapted to contemporary practices. The "scope of the property right and the statutory rights and duties between neighbours" will be introduced as a single chapter, and various topics that are now scattered will be grouped together (including an elaborated regulation for neighbourhood disturbances, vertical accession, etc.). Finally, other forms of splitting up immovable property, alongside the forced co-ownership of buildings or groups of buildings, will also be made possible. The preliminary draft of the property law reforms is expected by the summer of 2017.

The law of obligations receives a central place in the reform of the civil law, whereby one is seeking a new equilibrium between the freedom of will of contracting parties (e.g. for the termination of an agreement) and the role of the judge as protector of the weaker parties and social interests. A few concrete examples here are the regulation of the precontractual phase, a modernisation of the theory of nullities, the possible insertion of (a limited form of) unforeseeability theory and the introduction of a regulation for contract transfer. The preliminary draft of the reform is anticipated for the spring of 2017. After these preliminary drafts, an extensive consultation phase with the relevant players has been scheduled. We will keep you informed about the following steps in these announced reforms. 

You will find the complete policy memorandum at https://www.koengeens.be/beleid/hercodificatie.

You will find our newsflash on the New Company Law here.

For more information on this topic, you can contact Christine Heeb, Ewoud Willaert and Julie Colpaert (authors).