A written contracting agreement and the proof of its execution are important to obtain payment for the works

It’s risky to perform contracting works without a written contracting agreement: the absence of agreements established in writing means that there can be possible disputes about virtually every aspect of the assignment.

One of these aspects is the payment for the works and the exact price that the parties agreed on for them.

Recent higher-level case-law demonstrates that the lack of a written contracting agreement exposes the contractor or subcontractor to the risk of not being fully compensated for his works.

In its decision of 20 October 2015, the 20th division of the Court of Appeal of Brussels ruled that a contractor who performs works without a written agreement or any writing from the principal that makes the existence of this agreement probable, runs the risk of going unpaid for the works that he carried out (Brussels 20 October 2015, TBO 2016, 63-64). This is because the contractor bears the burden of proof for the works that he performed for the principal.

The decision of the Court of Cassation of 21 January 2016 confirms that the contractor who claims payment for allegedly agreed works must prove that he actually performed the works (Cass. 21 January 2016, AR C.14.0470.N, www.cass.be).

This means that not only the existence of a (sub)contracting agreement, but also its execution must be proven. The contractor or subcontractor must therefore demonstrate that he actually performed the agreed works. Such proof can be furnished e.g. by the production of worksite reports or an acceptance report. If these documents are not present, there is a risk that the Court will deem that the proof has not been provided of execution of the works for which compensation is claimed, and that the (sub)contractor will consequently receive no payment.

For more information about this subject, you can contact Nel Van Daele and Maarten Somers (authors).