Almost every sale agreement contains a clause in which the seller excludes the warranty for hidden defects. Such exoneration clauses are a classic tool to protect the seller against later claims, including those relating to asbestos. However, their scope is more limited than many people think, and a poorly drafted clause can even leave the seller in a worse position than if there had been no clause at all. Below you will read where the limits lie and how to draft a clause so that it protects rather than exposes.
The non-warranty clause is in principle valid
The starting point is reassuring for the seller. A clause that excludes the warranty for hidden defects is in principle valid. The Court of Appeal of Brussels expressly confirmed this in an asbestos case: non-warranty clauses are valid, and a lay, non-professional seller cannot be expected to establish the presence of asbestos on his own initiative (Brussels, 5 February 2021). A private individual selling an older home therefore does not have to carry out an asbestos survey merely to cover his liability, and can in principle rely on the exoneration.
That principle, however, has three important limits.
Limit one: the seller's bad faith
The first limit is the seller's knowledge. Anyone who knew of the defect at the time of the sale cannot hide behind a non-warranty clause (Article 1643 of the Civil Code). The reason is logical: a seller may not contractually exclude his liability for a problem he deliberately concealed. A seller who knows there is asbestos in the property and conceals that fact therefore loses the protection of his own clause. If he knew of the defect, he is moreover liable for all damages, and not merely for return of the price (Article 1645 CC).
Limit two: the professional seller and the consumer
The second limit is linked to the seller's capacity. A professional seller is presumed to know the defects of the item sold. That presumption is particularly difficult to rebut. Whether someone qualifies as a professional seller depends, according to the Court of Cassation, on his degree of specialisation and technical competence in relation to the goods sold (Cass. 7 April 2017). A contractor, developer or real estate company that builds and sells homes readily falls within that category. How the law assesses the contractor or self-builder as seller more strictly can be read in our separate contribution on that topic.
This is a point of attention when companies sell. A broad corporate purpose in the articles of association — in which, for example, the purchase and sale and development of real estate is included — can increase the risk that the selling company is qualified as a professional seller, with the accompanying reversal of the burden of proof. Anyone selling through a company would do well to examine that qualification question in advance.
On top of that presumption comes consumer protection. If an undertaking within the meaning of the Code of Economic Law sells to a consumer, a clause that excludes or limits the statutory warranty for hidden defects is null and void (Mons, 8 January 2019). Vis-à-vis a consumer-buyer, the exoneration therefore offers a professional seller no protection whatsoever.
Limit three: the self-builder "in own management"
Even those who are not professionals do not always escape. A seller who built or substantially renovated his home "in own management" is deemed to know the defects of his own work. The Court of Cassation confirmed that such a self-builder cannot rely on an exoneration clause for defects arising from that own work (Cass. 18 February 2019). Anyone who has personally processed or encapsulated asbestos-containing material cannot therefore contract away the consequences with a standard clause.
The reverse pitfall: the guarantee of absence
So far, this has been about excluding liability. At least as important — and far less well known — is the reverse movement. Estate agents sometimes have sellers sign a clause in which they "guarantee the absence of asbestos". That is well-intentioned towards the buyer, but a pitfall for the seller.
In a home built before 2001, asbestos is almost always present somewhere. An explicit guarantee that there is no asbestos is therefore a promise the seller generally cannot deliver on. Worse still: such a guarantee changes the legal basis of any possible claim. Instead of a claim for hidden defect — which the buyer must bring "within a short time" of discovery on pain of forfeiture — a claim arises for breach of a contractual guarantee. And that protective short time limit does not apply to it (Court of First Instance of Walloon Brabant, 3 June 2015). With his own guarantee, the seller thus disables precisely the time limit that would otherwise protect him. He creates a problem that did not exist without the clause.
Concrete drafting tips
From the foregoing, several practical guidelines follow.
Never guarantee the absence of asbestos. Limit every statement to what the seller actually knows. A safe formulation reads, for example: "To the seller's knowledge, no asbestos has been established in the property, save for [the known material]." This keeps you within a good-faith declaration and avoids giving an obligation of result.
Mention known asbestos expressly and completely. What you disclose can no longer be a hidden defect and cannot be held against you as concealment. The exoneration works best precisely in combination with correct, complete information.
Align the clause with the intended use. A property that is expressly sold "for renovation or demolition" justifies a broader risk allocation than a home offered as "move-in ready". How a sale in the condition in which the property is found works out legally partly determines how far that risk allocation reaches.
Be cautious when selling through a company. Examine in advance whether qualification as a professional seller threatens, because in that case the exoneration vis-à-vis a consumer is in any event without effect.
What an exoneration clause can never disable
Finally, an essential limit that is separate from hidden defects. The obligation, when selling a certificate-bound building, to communicate the content of a valid asbestos certificate is a matter of mandatory law. The nullity sanction attached to it cannot be disabled by an ordinary exoneration clause. The buyer can validly waive that nullity only if he has effectively received a valid certificate and expressly does so in the notarial deed — a standard clause is not sufficient. In other words, a non-warranty clause governs civil liability for defects, but does not touch the certificate obligation.
A well-drafted asbestos clause protects the seller; a poorly drafted clause actually exposes him. Never let the clause be drafted or signed lightly. More on the interplay with the warranty obligation can be found in asbestos as a hidden defect on purchase and in our guide to asbestos in real estate.
How Reius Advocaten can assist you
Would you like an exoneration or warranty clause on asbestos drafted or reviewed before you sign? Reius Advocaten assesses whether the clause actually protects you, warns of the pitfall of an absolute guarantee, and tailors the clause to your specific sale. If a dispute nevertheless arises after the sale, we examine which legal basis is strongest in your file. Feel free to get in touch via info@reius.be or the contact form.