Forget hardship clauses, here come “hell or high water” clauses (LegalNews.be)

Author: LegalNews.be

Date of publication: 23/07/2018

Olivier Vanden Berghe (Partner Contracts & Litigation at Liedekerke Wolters Waelbroeck Kirkpatrick) gives more explanation.

The main novelty in the future Belgian Civil Code, presently still a draft, is the introduction of hardship (“imprévision”) in contract law. In case of unforeseeable changed circumstances that render the performance of the agreement so excessively onerous that it cannot be reasonably expected from a party, said party is entitled to ask the other party for a renegotiation or termination of the contract. If no agreement is found between the parties, the court may, in an expedite procedure, adapt or terminate the agreement (or not). Until then, the initial terms of the contract should be respected.

This hardship regime however will not be of mandatory law. One can therefore expect a significant increase of clauses providing that each party (or as a matter of fact only one party) must perform “come hell or high water”, meaning no matter what happens and in spite of all difficulties, whether foreseeable or not.

I wonder how courts will react to those assumption of risk or “hell or high water” clauses. Even if in theory such agreed clauses could still be set aside because of abuse of right, this should in my opinion be quite exceptional.