On 15 May 2025, the Belgian legislature passed the bill introducing Title I “Personal Securities” of Book 9 “Securities” into the Civil Code. This title comprises the first part of a book that will ultimately also govern mortgages, pledges, retention of title and retention rights, and privileges. It will enter into force on 1st January 2026.
This first title codifies all personal securities defined as situations where “the obligation of a third party to secure to a creditor the payment of an obligation of a principal debtor to a creditor” (Art. 9.1.2, 1°). It regulates the surety (“cautionnement/ borgtocht”), previously codified in Articles 2011 to 2043octies of the old Civil Code, but introduces also rules on autonomous guarantees (“garantie autonome/ autonome garantie”) and letters of patronage, which were not previously codified.
The purpose of this codification is to provide a modern legal framework for personal securities, with due respect for the autonomy of the parties. Indeed, the regime of Title I of Book 9 is suppletive (Art. 9.1.1), with the exception, in essence, of the regime of personal security provided by a consumer (Art. 9.1.43, para. 3) and certain protections for natural persons in general.
Finally, it should be noted that the rules governing in rem sureties (“cautionnement réel/ zakelijke borg”) have not yet been precisely defined: certain articles refer to them (e.g. Art. 9.1.21), as do the preparatory works, albeit without a dedicated section for them. A degree of uncertainty therefore remains.
Without being exhaustive, this article highlights some aspects of Book 9, notably on the surety, and their practical consequences.
Personal securities have been largely recodified under existing law, subject to a few innovations.
Firstly, Title I sets out a presumption that the constitution of a personal security is a surety (Art. 9.1.11). In practice, care should be taken when constituting an autonomous guarantee, frequently used in the banking sector, or a letter of patronage: an express qualification of the act is to be preferred. The stakes are not theoretical, considering that whereas an autonomous guarantee is autonomous from the secured obligation, a surety is accessory. Therefore, in the absence of any exclusion in the security agreement, a surety may invoke all exceptions relating to the secured obligation the and benefit of discussion – which is not the case for a guarantor. For the autonomous guarantee, the rules remain “pay first, discuss later”. However, there is no longer any distinction in the recourse that the guarantor or the autonomous guarantor may exercise against the principal debtor: in both cases, they are protection by subrogation (Art. 9.1.41).
With regard to obligations that may be secured, Title I codifies the surety for all debts, formerly only recognised by case law. In such cases, the act of surety must provide the maximum amount of the surety’s obligation (Art. 9.1.16).
With regard to the practical enforcement of a surety, the Civil Code now expressly provides – as called for by legal doctrine – that prior formal notice must be given to the principal debtor (Art. 9.1.22) and that the surety must be notified of this formal notice. This contrasts with the previous regime, where the right of action against the surety arose as soon as the principal debt became due.
In Title I, the legislature has provided for three degrees of protection for a security provider, either by setting out a suppletive general legal framework or by laying down mandatory provisions: provisions applicable to all sureties, specific protection for natural persons and provisions protecting consumers, i.e. natural persons that may not be qualified as undertakings.
In particular, these latter provisions, applicable to consumers, will replace the – protective – provisions applicable to gratuitous security providers. In doing so, the legislature appears to have broadened the scope of the protection regime. For instance, formerly, if a self-employed director of a company and their spouse guaranteed part of the debt of said company, the spouse could not be considered a gratuitous guarantor, given the indirect interest that this surety conferred on their assets. Under Title I of Book 9, however, said spouse would qualify as a consumer and benefit from the protective provisions accordingly.
With regard to this protective framework, the legislature has in some cases codified the existing framework relating to gratuitous sureties under existing law – whether derived from the old Civil Code or from established case law. For example, consumers may not grant sureties for all debts and the maximum amount of the surety must be specified in the security act, failing which it will be null and void.
In other cases, the legislature has reformed existing provisions or introduced new protection. Thus, a consumer may not grant personal securities other than a surety – and therefore no autonomous guarantee or letter of patronage (Art. 9.1.43, para. 2). Should a consumer grant an autonomous guarantee, a binding letter of patronage or a joint liability as security, the latter shall be automatically converted into a surety. Likewise, the legislature has provided for an obligation to provide prior information to the consumer security provider. Finally, the sanction for a surety deemed disproportionately at the time the personal security is granted is no longer a nullity (Art. 2043sexies of the old Civil Code) but its reduction to a reasonable amount (Art. 9.1.47).
With regard to this latter point, it should be noted that it is likely to raise difficulties in bankruptcy cases. Indeed, as a reminder, the principle remains that insolvency proceedings do not have any consequences on personal securities, which remain in effect. However, pursuant to Article XX.176 of the Economic Law Code, a natural person providing a gratuitous surety may request discharge from all or part of their obligation if, on the opening of bankruptcy proceedings, their obligation is manifestly disproportionate to their ability to make payment. However, the legislature did not repeal this additional layer of protection, which now coexists with the provision for reduction if the security is disproportionate at the time it was granted.This creates an unnecessarily complex regime, with two separate moments for assessing disproportionality and differing scopes for the protective provisions, given the distinctions between gratuitous and consumer sureties..
The autonomous guarantee, which is defined as “a personal security which does not depend on the validity, terms, extent and continued existence of a secured obligation” (Art. 9.1.2, 3°), is codified through a suppletive regime. Parties are therefore free to agree on the content of an autonomous guarantee but are advised to clearly respect the autonomous nature of the guarantee, to avoid the risk of a qualification as surety. In this respect, the Civil Code helpfully clarifies that the mere reference to the secured claims, does not prevent a qualification as an autonomous guarantee. Importantly, this codification does not affect the application of existing non-binding regulations that are frequently used in practice, such as the Uniform Rules for Demand Guarantees from the International Chamber of Commerce (URDG 758).
In conclusion, Title I of Book 9 of the Civil Code introduces a comprehensive framework for personal securities, codifying sureties – often under existing law – and autonomous guarantees while maintaining contractual autonomy through a largely suppletive regime. It introduces some notable provisions that warrant attention, such as the presumption of a surety and the obligation of formal notice for the enforcement of a surety. More fundamentally, Title I strengthens consumer protection by introducing new protective provisions such as the mandatory choice of a surety in case of a personal security provided by a consumer and the prior information obligations. Certain aspects, which are still somewhat unclear, such in rem sureties or the coexistence of protective provisions in the event of disproportionate surety provided by consumers or gratuitous security providers, will nevertheless need to be clarified in the future and remain areas of complexity for professionals and practitioners.
If you have any question about this new regulation, feel free to contact the authors of this article.
***
This newsletter does not constitute legal advice or a legal opinion. Please consult with a legal counsel of your choice before taking any action based on the information provided.