What is an exoneration clause?

Is an exoneration clause permissible in common law?

Within common law, the principle of freedom of contract should be assumed in the first instance. This means that contracting parties are free to determine the content of their contract. Since Belgian liability law is of a suppletive nature, and therefore neither mandatory in nature nor of public policy, contracting parties have a free choice whether or not to limit or exclude the liability of one of the parties by means of an exoneration clause.

However, there are some exceptions to this free choice. One of the main exceptions concerns the situation where a contracting party would exonerate itself for its own wrongdoing through an exoneration clause. An exoneration clause that exonerates the debtor from his own deliberate intent and thus from his personal fraud are impermissible. In addition, a contact party cannot exonerate itself for that which is the essence of the contract either.

Attention: exoneration for one's own serious fault by means of an exoneration clause is therefore allowed within common law. This is different within consumer law.

Is an exoneration clause legally valid in consumer law?

In contrast to common law, the legislator provides quite a few more exceptions to the use of exoneration clauses in the contractual relationship between consumer and company. The Economic Law Code provided for a black list in which a number of provisions consider exoneration clauses to be prohibited in certain cases. As a result, these unlawful and therefore prohibited clauses must be annulled by the court. These should thus be considered unread. The following exoneration clauses are blacklisted according to Article VI. 83, 13° of the Economic Law Code as prohibited and unlawful:

• An exoneration clause releasing the company from liability for its deliberate intent;
• An exoneration clause releasing the company from liability for its gross negligence or that of its appointees or agents;
• An exoneration clause releasing the company from liability for the non-performance of an obligation that constitutes one of the main performances of the contract.

Please note that the above situations refer to the discharge of liability, which therefore implies the complete exclusion. It is therefore not a mere limitation. Thus, in principle, an exoneration clause limiting the company's liability in the event of its deliberate intent is admitted and not prohibited under the black list.

Similarly, the following exoneration clause is blacklisted under Article VI. 83, 25° of the Economic Law Code is considered prohibited and unlawful: the exoneration clause that excludes OR limits civil liability in case of death or bodily injury of the consumer as a result of an act or omission of this company.