Obligations law in Belgium – Wikipedia

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In Belgium, the obligation rights is one of the main bases of private law. He is the heir to Roman law and suffered significant developments in 1804, the date of entry into force of the Civil Code, as well as during the legislative, jurisprudential and doctrinal modifications of the texts and their interpretations.

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The majority of the law concerning the law of obligations is found in articles 1108 to 1386 until , 1689 to 1701 and 2219 to 2280 of the Civil Code; The law of regulating the construction of housing and the sale of housing to be built or in the process of construction; The law of relating to consumer credit; The law of on trade and information and consumer protection practices; and the law of relating to misleading advertising and comparative advertising, abusive clauses and distance contracts with regard to liberal professions.

The European Union legislator is increasingly aimed at harmonization of the law of obligations in Europe, in particular with regard to competition law, electronic commerce, consumer law or responsibility for the fact of the fact of defective products.

The obligation is a link of law under which one or more persons, physical or legal (creditors) may require a service or an abstention from another or several other people, the debtors. This legal link implies a power of constraint of the creditor on the debtor in order to force him to execute [ first ] .

Obligations in three categories are generally classified: the obligations of do (to do), non-do (not to do) and dare (Give, that is to say to create or transfer a real right or claim).

Obligations from legal acts [ modifier | Modifier and code ]

The legal act can be defined as a manifestation of will expressed with the intention of producing effects that the law attaches it, which is called legal intention.

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Doctrine classifies obligations from legal acts in unilateral legal acts and multilateral legal acts, contracts. The Civil Code sets out many rules on contracts but little on unilateral legal acts and, when it does, it is not as a general category but on determined unilateral legal acts.

The unilateral legal act [ modifier | Modifier and code ]

The unilateral legal act is the manifestation of one person will with the intention of producing effects that the law attaches him. We find as unilateral legal acts:

  • the will and the renunciation of a succession,
  • recognition of a child,
  • Leaving in matters of lease, the dismissal of a attendant, the revocation of a mandate contract, the exercise of the faculty of unilateral termination of an agreement,
  • Commitment by unilateral declaration of will,
  • etc

Although unilateral, a manifestation of will can create an obligation in the head of its author. For example, the offer to contract links the one who offers [ 2 ] . To do this, it takes a manifestation of a certain and firm will, the form does not matter, in some cases, a notification to the recipient [ Note 1 ] , [ 3 ] .

The contract [ modifier | Modifier and code ]

The contract is an agreement of will between at least two people in order to produce effects in the field of law.

Obligations from legal facts [ modifier | Modifier and code ]

[ modifier | Modifier and code ]

The quasi-contracts [ modifier | Modifier and code ]

The quasi-contract are a kind of contract. The difference with a usual bilateral contract is that here, in the quasi-contract, one of the parties has not given its consent. There are many examples of quasi-contract: your neighbor, who went on vacation, has suffered a water damage, you call the roofer to repair the leak: your neighbor, without having given his prior agreement, undertakes to reimburse you repairer because you have made a decision in his interest. Same principle if you pay an invoice that your spouse had already paid two days earlier: the seller must reimburse you on the undue payment without having agreed.

The concept of non -performance of the obligation includes total or partial, late and defective non -performance. When it is attributable to the debtor, the creditor has means of pressures, legal sanctions. The creditor may claim execution in kind or, failing that, equivalent execution, the exception of non -performance and the resolution for faulty non -performance.

The notice [ modifier | Modifier and code ]

The debtor must in principle be put in notice before a sanction can be implemented towards him. The formal notice is a unilateral receptic legal act by which the creditor claims to the debtor clearly and not equivocate the execution in kind of the obligation which falls to him. It is a question of giving the debtor a last chance to perform in kind. When it comes to an obligation to dare, the formal notice operates a reversal of the risk burden.

However, if execution in kind no longer makes sense, it is not necessary to make a formal notice. Likewise, some laws dispense from this formality in certain cases. The contract may also dispense this obligation, a sub-service of use of good faith.

Execution in kind [ modifier | Modifier and code ]

In principle, the creditor has the right to claim the execution of his right. But according to the adage No one can precede cogi af made One cannot force a person to do something strength (e.g. forcing a gardener to take care of the garden). There is then either an equivalent execution, that is to say most of the time, the payment of a sum of money or palliative.

Replacement is a mode of execution in indirect kind, it consists in having a third party proceeded by the execution of the suffering obligation at the expense of the debtor. It must be previously authorized by the judge, except in the event of an emergency in which case we speak of unilateral replacement. If it takes place of emergency, the creditor must be able to prove that the replacement was urgent, that he acted in good faith, that he previously put his debtor to execute, that he informed the A debtor he was going to operate on a replacement, that the replacement is not done at an exaggerated cost and that his debtor had not executed and that it was attributable to him. A judicial control in the aftermath is always possible.

Another palliative is the impossibility of obtaining the forced execution of an obligation requiring the intervention of the debtor. It consists of the possibility for the creditor to obtain in court a condemnation of the debtor to execute in kind under the threat of the payment of a sum of money. It must be pronounced by the judge, is an accessory to an injunction of the judge, relates to the payment of a sum of money and is only due if the debtor does not respect the order of the judge. Its purpose is not to compensate the creditor but to push the debtor to act.

Equivalent execution [ modifier | Modifier and code ]

When execution in kind is no longer possible, is no longer satisfactory for the creditor or when it would constitute an abuse of law in its leader, the execution takes place by equivalent, that is to say that We are making the compensation for the damage caused by non -performance. It generally takes place by granting damages.

In order for it to take place, a stake must not have taken place, that the non -performance is due to the debtor and that there is direct and predictable damage.

The contractual liability of the debtor is based on lack. No matter the severity of the fault. A liberating foreign cause, that is to say an event free from any fault of the debtor, so much before, while after his occurrence and which made impossible the execution of his obligation by the debtor can release the debtor when This is an obligation to result that the burden of proof is the responsibility of the debtor.

  • Payment,
  • Novation, (change of object, creditor or debtor)
  • confusion, (the debtor becomes a creditor of his own debt = confusion between debtor and creditor ⇒ extinction of the obligation)
  • Compensation, (compensation for a debt with another, for the same creditors and debtors, for a debt which relates to a fungible property, due on the same date and liquid)
  • prescription, (exceeding the deadline for an obligation)
  • debt delivery, (free renunciation of creditor’s rights to his or his debtors)
  • impossibility of execution (“to the impossible, no one is held”)

Notes [ modifier | Modifier and code ]

  1. ↑ An act receptive is an act which must, by nature, as a condition of validity, be the subject of a notification to one or more determined persons. It is distinguished from the act non -receptic .

References [ modifier | Modifier and code ]

  1. ↑ C. Biquet-Mathieu, Law of obligations and contracts, notes under construction , Liège, ULG, 2009-2010, p. 2.
  2. ↑ Cass., May 9, 1980 (two species), Not. 1980, 1, p. 1120 and p. 1127.
  3. ↑ Voy. P. VAN OMMESLAGHE, Bond law, course notes , Brussels, U.L.B., 3 It is ed., 1998-1999, p. 374.

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