Limitation of liability for minor latent defects – period

The ten-year liability of the contractor and architect for defects affecting the stability of (a part of) the building they erected/designed (articles 1792 and 2270 of the Civil Code) is a matter of public order. It concerns a term of forfeiture that cannot be departed from by agreement.

In addition, the contractor and the architect are also liable for defects that do not threaten stability (so-called "minor latent defects" that could not be identified via an attentive and precise examination performed by a normal, circumspect and careful person, put in the same specific circumstances) as a result of which the building (or a part thereof) can be affected.  

The liability of the contractor and architect for minor latent defects also runs for ten years, yet this period is not a matter of public order (Cass. 25 October 1985, Arr. Cass. 1985-1986, 270). Consequently, the parties are essentially free to modify it by contract. Contractual clauses under which a contractor limits his liability for minor latent defects of the work delivered by him are permitted, except (1) if they exempt the debtor from any liability for his personal intentional fault and (2) if they remove any meaning or significance from the contractual obligations striven for by the parties (Commercial Court of Brussels 11 June 2007, RW 2008-2009, no. 38, 1612). In order not to rob this common-law liability of all meaning, it was traditionally accepted that the principal had to have a reasonable period in order to react to any minor latent defects (W. Nackaerts, "Exoneratieclausules voor lichte verborgen gebreken bij aannemingscontracten" [Exemption clauses for minor latent defects in contracts for services], RW 1992-1993, 1423). For example, the contractor can provide that he is only liable during a period of one year after the provisional acceptance for the minor latent defects that are not covered by articles 1792 and 2270 of the Civil Code.

By a decision of 1 August 2013, the Court of Appeal of Brussels has now expanded the possibilities for limiting this period (Brussels 1 August 2013, TBO 2015, 143): the Court accepted an exemption clause in a contracting agreement with which the principal´s right of action for minor latent defects is limited to three months after the provisional acceptance. According to the Court, such an exemption clause does not deprive the agreement of all meaning or significance, and so there is no reason to declare the exemption clause invalid.

The above-mentioned decision of the Court of Appeal of Brussels significantly strengthens the contractor’s position, but we still have to wait and see whether the other legal instances will also follow it.

For more information on this particular topic, you can consult Gerlinde Gielis (author) and Chantal De Smedt - Quintelier (head of department).