Date of publication: 27/08/2018
Opinion by Olivier Vanden Berghe (Partner Contracts & Litigation at Liedekerke Wolters Waelbroeck Kirkpatrick).
Under present contract law any damage should be compensated, as soon as it is caused by a breach (= if there had been no damage without breach).
The Civil Code says that only foreseeable damage should be compensated, but this is a virtual restriction, meaning (as will be specified in the new Code) that the occurrence of the damage should be foreseeable, not its extent: once a breach is established and some harm is foreseeable, the defendant is liable for the full extent of the harm, irrespective of its indirectness or remoteness.
According to the future chapter on torts (not yet approved in Council of Ministers though) there is no liability if the link between the breach and the damage « is so remote that it would be manifestly unreasonable to hold the defendant liable” taking into account the “unforeseeable nature of the damage” and the actual impact of the breach.
Since this new article will also apply to contractual liability, it might introduce remoteness in contract law.
But should we really add such a restriction to liability? Belgian case law is not overly liberal when granting damages and the prohibition of abuse of rights should suffice as a safeguard if needed.