The coronavirus pandemic has fundamentally changed how Belgian courts approach force majeure in commercial lease relationships. The principles derived from the Covid case law extend beyond that specific crisis: they are relevant to any situation in which external circumstances make the operation of a business impossible.
The legal basis: article 1722 of the old Civil Code
The starting point is set out in article 1722 of the old Civil Code: if the leased property is entirely destroyed during the term of the lease by an accidental event, the lease is dissolved by operation of law. In the case of partial destruction, the tenant may, depending on the circumstances, request a price reduction or termination of the lease.
This article targets material destruction — a fire, a flood, a collapse. But what if the building remains physically intact, yet the operation becomes impossible due to government measures or a case of force majeure? Between 2023 and 2024, the Belgian Supreme Court (Hof van Cassatie / Cour de cassation) issued three landmark judgments providing clarification.
Supreme Court judgment 1: Temporary force majeure suffices
In a judgment of 26 May 2023 (Cass. AR C.22.0296.N), the Supreme Court confirmed that article 1722 of the old Civil Code presupposes a permanent or temporary impossibility for the landlord to provide the agreed enjoyment.
Specifically: when a rented commercial space is, wholly or partially, no longer accessible to the public due to government measures against Covid-19, this constitutes a temporary impossibility within the meaning of article 1722 of the old Civil Code.
The Court added that force majeure preventing a party from performing its obligations, in a reciprocal contract, suspends the obligations of the counterparty if the impediment is temporary and the contract can still be usefully performed afterwards.
Practical consequences for the tenant:
The obligation to pay rent may be suspended during the period of impossibility
After the period of impossibility, the lease may be continued if both parties still have an interest in doing so
A court that merely finds a "temporary" impossibility and, on that ground, rejects the application of article 1722 of the old Civil Code, does not legally justify its decision
Supreme Court judgment 2: Force majeure need not be attributable to the landlord
A second landmark judgment of 7 September 2023 (Cass. AR C.22.0437.N) rejected an incorrect interpretation by the Antwerp Court of Appeal.
The appeal court had held that there could only be a permanent or temporary impossibility for the landlord if the disturbance of enjoyment was attributable to the landlord. The Supreme Court quashed that decision: the disturbance of enjoyment is independent of the landlord's contractual liability.
This is a fundamental confirmation: the tenant does not have to prove any fault on the part of the landlord. External force majeure — government measures, natural disasters, pandemics — is sufficient to invoke the protection of article 1722 of the old Civil Code.
Supreme Court judgment 3: The trial judge assesses the full or partial nature
In a third judgment of 13 September 2024 (Cass. AR C.23.0370.N), the assessment powers of the trial judge were confirmed. It is for the trial judge to assess:
Whether the disturbance of enjoyment is full or partial
What the consequences are for the claim for termination or rent reduction
In concrete terms, this means that a justice of the peace has a margin of discretion to decide on an equitable basis, taking into account the specific business, the type of trade, the actual impact of the force majeure, and the extent to which the tenant was able to reorient, for example towards take-away or online sales.
When does this case law apply beyond Covid?
The Covid judgments are formally limited to the coronavirus pandemic, but the legal principles are of general application. According to this case law, article 1722 of the old Civil Code applies where:
An external force majeure factor occurs (government measure, natural disaster, pandemic, war)
That factor makes the operation of the building in accordance with the agreed purpose wholly or partially impossible
The situation is permanent or temporary — both benefit from the protection
Possible future applications:
A new pandemic with closure measures
An energy crisis making your operation impossible
A terrorist attack or evacuation zone isolating your business
A natural disaster that leaves the building itself intact but disrupts access or public utilities
Revision of the rent as an alternative
In addition to the protection of article 1722 of the old Civil Code, you can also request a revision of the rent under article 6 of the Commercial Lease Act. The Supreme Court confirmed in 2024 that an uncertain economic climate caused by a global pandemic may be regarded as an objective circumstance when determining the normal rental value (Cass. 4 October 2024, AR C.23.0272.N).
This procedure runs in parallel with the force majeure claim and can provide a lasting solution for the next three-year period.
What will change under Book 7 of the Civil Code?
The forthcoming Book 7 of the Civil Code restructures the rules on force majeure. Article 7.3.35 of the preliminary draft provides:
"If the leased property is entirely destroyed during the term of the lease by an accidental event, the lease is dissolved by operation of law. If the leased property is partially destroyed during the term of the lease by an accidental event, the tenant may, depending on the circumstances, invoke either a price reduction or termination. In neither case is compensation owed."
Important change: there is no longer any extension to "temporary destruction". Under Book 7 of the Civil Code, article 7.3.35 therefore applies only to actual destruction — and not to situations where the building remains physically intact but operation becomes temporarily impossible.
This means that the Covid case law on temporary force majeure under the old law will have to be invoked for situations predating the entry into force of Book 7. For future crises under the new law, tenants will likely have to rely more heavily on the general doctrine of force majeure (article 5.226 of the Civil Code) and on the doctrine of hardship (imprévision).
Practical tips in the event of force majeure
Document the impact as accurately as possible. Photos, turnover figures before and during the crisis, closure of the shopping street, evidence of government measures.
Send a formal notice of default to the landlord announcing your claim for rent reduction or termination. Substantiate it with figures.
Negotiate amicably first. Many landlords are open to a temporary reduction in order to retain the tenant as a future customer.
Safeguard your rights within the time limits. The limitation period for your claim continues to run, even during the crisis.
Seek legal assistance before unilaterally stopping payment of rent. An unjustified suspension may lead to termination of the lease at the tenant's expense.
Would you like a full overview of your position as a commercial tenant or landlord? Read our guide on the rights and obligations under a commercial lease.