What you must know about the ‘new’ anticipatory breach

We continue to offer legal insights on Book 5 of the new Belgian Civil Code (CC). This article discusses the general outlines of contract termination and digs deeper into the new rules on the anticipatory breach.

The CC first of all confirms the – already existing – ways to terminate a contract:

• Judicially (upon a ruling of the court),
• By notice of the creditor and,
• Pursuant to an explicit termination clause.

These three dynamics share the common factor that an attributable breach of contract is required. In principle, the creditor can only end the contract if the other party commits a serious breach of its obligations.

A new possibility

Article 5.90 CC however introduces the possibility for the creditor to end the agreement in anticipation of the debtor’s shortcomings. This is a (far-reaching) solution for a creditor who fears that a debtor shall not comply in the future, even though the obligation is not yet due.

To give an example: your client is facing cash flow problems and even before receiving delivery, has informed you that payment (for products or services) will be delayed for an indefinite term. Moreover, your client has not given you any (additional) payment guarantee.

 

The remedy is quite drastic and that’s why article 5.90 CC imposes strict conditions in order for the anticipatory breach to proceed.

We may not just assume that a debtor won’t comply. He needs to be given the opportunity to prove otherwise. So beforehand, the debtor should get the chance, during a reasonable period of time, to offer sufficient warranties that guarantee his proper performance. Besides, exceptional conditions need to be involved, for example, situations of urgency or the threat of significant damage.

In our example, it would imply significant damage for the supplier to deliver a great amount of merchandise, knowing almost for certain that payment will be considerably delayed.

 

This new provision will be suppletive law. As such, parties may explicitly exclude the possibility of an anticipatory breach in their contract. They may also include a specific clause describing the situations and/or exceptional conditions that qualify for a lawful termination due to anticipatory breach.

If you are confronted with a possible shortcoming contract party, we will gladly assist you on how to protect your interests best. Feel free to contact us.

Sources:

• Book 5 of the Belgian Civil Code
• Reform of Book 5 of the Belgian Civil Code