The Act of 13 April 2019 creates a new Belgian Civil Code by introducing Book 8 covering the law on evidence (hereinafter the "Act"). The Act aims to clarify, modernize and codify the current (outgoing) legal regime. The Act is an evolution rather than a revolution, as it largely encompasses fundamental principles from current legislation, case law and legal practice.
This new regime will enter into force on 1 November 2020. Save for a few exceptions, the Act will be of immediate application to court proceedings pending or introduced as of such date.
A good knowledge of the law on evidence will help enterprises to be proven right. Hence, we highlight some of the main provisions of the Act below.
The burden of proof
The burden of proof of a fact or a legal act (rechtshandeling – acte juridique) rests with the party that relies on such fact or legal act. Nonetheless, under Book 8, all parties have a duty to cooperate in the administration of evidence, even in the absence of an injunction from Court.
Furthermore, under the Act, a Court can determine, under strict circumstances and via a specially motivated judgment, which party will bear the burden of proof when the application of the statutory provisions on burden of proof would be manifestly unreasonable. As a result, we can expect Courts to play a more active role in the area of evidence.
For instance, if a party claims that it did not receive a delivery from its supplier, but cannot demonstrate such lack of delivery, a Court could decide that the supplier will bear the burden of proof that the delivery effectively took place.
Evidence by likelihood
In principle, evidence must satisfy the standard of a reasonable degree of certainty. However, to soften this principle, the evidence of a negative fact can be established by meeting the standard of likelihood. This rule also applies to positive facts, which, by their nature, cannot possibly or reasonably be established with a reasonable degree of certainty.
For instance, in order to establish which belongings were stolen from a safe, it could suffice for evidence to meet the standard of likelihood.
Any digital document with an electronic signature can receive the status of a privately signed document (onderhandse akte – acte sous seing privé), provided that the electronic signature (i) allows identification of its author; and (ii) demonstrates the author’s willingness to adhere to the content of such document. A privately signed document can be signed by one or more persons.
For instance, under the outgoing regime, a document containing the scan of a handwritten signature or an email sign-off are regarded as commencement of proof in writing (begin van schriftelijk bewijs – début de preuve écrite). Therefore, such evidence has to be supported by other elements of evidence in order to qualify as a privately signed document. Under the Act, it is possible for documents containing the scan of a handwritten signature and emails with a sign-off to constitute privately signed documents in their own right.
It follows that the Act increases the importance of digital documents.
Extension of the unregulated evidence regime
While Book 8 maintains the distinction between the "regulated" and "unregulated" regime on evidence, it also innovates by extending the scope of the unregulated evidence regime. In essence, the regulated regime requires written proof above a certain financial threshold, while the unregulated regime places all means of evidence on an equal footing.
The means of evidence will be unregulated as no written evidence is necessary regarding numerous day-to-day transactions. However, all transactions covering a sum or a value equal to or greater than 3.500 EUR must be evidenced by a signed written document. The previous limit of 375 EUR was considered too low and could discourage parties to start proceedings. In other words, for transactions below the new threshold, witnesses or presumptions can now be regarded as sufficient evidence, depending on the Court’s assessment.
As for contracts requiring ongoing performance (duurcontracten – contrats à exécution successive – lease contracts, for example), the value to be taken into consideration for calculating the threshold is the total value of the transaction for a maximum period of one year (such as the annual rent). As a result, proving residential leases will often require a written contract.
Evidence in commercial matters is unregulated, that is to say, proof can be provided by any admissible means. The new regime extends this principle to all enterprises falling within the scope of article I.1° of the Belgian Economic Code, which now includes liberal professions and non-profit organizations. However, such enterprises cannot benefit from this unregulated regime against a non-enterprise, such as a consumer.
Accounting records constitute a valid means of evidence between enterprises. Under the new regime, Courts have the possibility to order the partial or full disclosure of accounting records of an enterprise. However, their probative value hinges on them being corroborated by the accounting records of the other enterprise, or enterprises, involved in the transaction. If the accounting records do match, a Court will be required to accept their probative value. If the accounting records do not match, a Court will freely assess their probative value, i.e. it could still rely on such accounting records or reject these as evidence, depending on its assessment of the facts of the case.
As to transactions between enterprises (i.e. B2B relations), the Act expressly provides that, unless proven otherwise, an invoice, accepted or not contested by an enterprise (within a reasonable time), is proof against that enterprise of the alleged legal act mentioned in the invoice. In other words, an enterprise could still attempt to prove that the invoice does not correspond to the underlying agreement, after the acceptance or non-contestation of said invoice. In contrast, under the outgoing regime, an accepted or non-contested invoice in sales matters constitutes non-refutable evidence of the underlying sale.
As for transactions between enterprises and non-enterprises (i.e. B2C relations), the Act holds that an invoice non-contested by a consumer is not regarded as accepted, unless this absence of contestation can only be explained as constituting an acceptance of such invoice. In this area, the Act is of mandatory nature. Therefore, in practice, B2C general conditions stipulating that non-contested invoices have a conclusive, probative value of the transaction so documented will not be effective.
Disclaimer: This newsletter is intended to provide information of general interest to the public and is not intended to offer legal advice about specific situations or issues. This newsletter is based on legislation, website publications and announcements as publicly available on 15 October 2020. AKD does not intend to create an attorney-client relationship by offering this newsletter.