One of the results of the introduction of the new rules for enterprises in the act of 15 April 2018 was an updating of the rules on evidence between enterprises. The draft act of 31 October 2018 concerning the addition of Book  8 ("Evidence") to the new Civil Code aims to continue this reform. Here is an overview of the most relevant changes.

Temporary article 1348bis of the Civil Code 

The act of 15 April 2018 concerning reform of the rules for enterprises (applicable since 1 November 2018) has abolished the rules on evidence as included in the Commercial Code and has (temporarily) added a new article 1348bis to the Civil Code. 

The principle of free evidence applies to all enterprises  

The concepts of "trader" and "commercial obligations" are being abandoned. The principle of free evidence concerns evidence from and against enterprises, which includes liberal professions and farmers. 

The principle of free evidence, including digital evidence 

All legal means can be used as evidence between and against enterprises, including digital evidence such as e-mails and text messages. 

Until now, case law has always been divided on the subject of digital evidence and there has often been reluctance to accept it as evidence. E-mails and text messages were usually only considered as a beginning of proof. The inclusion and acceptance of digital evidence is therefore an important step in modernising the rules on evidence between enterprises. 

Irregular accounts are valid as evidence  

It is no longer required that the accounts are properly kept in order for them to be used as evidence against an enterprise. However, the court can consider the (ir)regular nature of the accounts in determining their evidentiary value.  

The court can, itself or at a party's request, order disclosure of the accounts  

The Commercial Code made a distinction between the (full) disclosure of accounts and the (limited) submission of accounts. This distinction will disappear. Article 1348bis §3 of the Civil Code only refers to "disclosure". The additional oath as a penalty for the refusal of a party to disclose its accounts will also disappear. 

The court will now explicitly be able to impose measures to ensure the confidentiality of the accounts. The court can, amongst other things, (partly) limit the access to documents that contain trade secrets to certain (categories of) persons as determined by the court (such as auditors), or redact (part of) these documents.

An accepted invoice serves as proof for all types of agreements 

Article 1348bis of the Civil Code states that an invoice which is accepted by an enterprise is considered as evidence against that enterprise. The invoice therefore no longer only counts as evidence for sale and purchase agreements, as the Commercial Code stated, but applies to "all types of agreements", such as transporting and services agreements. Previously, an invoice only resulted in a factual presumption or a beginning of proof for such agreements. 

New Book 8 ("Evidence") in the new Civil Code 

The draft act concerning the addition of Book 8 ("Evidence") to the new Civil Code aims to continue the above-mentioned easing and modernisation of the evidence rules. The future article 8.10 of the new Civil Code will incorporate  the content of article 1348bis, albeit with some limited changes. In addition, the draft act is intended to codify and clarify the existing evidence rules and case law. 

Evidence against a natural person–enterprise 

The principle of free evidence does not apply to natural persons that are enterprises if it concerns actions that do not relate to their enterprise. It will, however, no longer be required that these actions are "obviously" not related to the enterprise, which is still the case under the temporary article 1348bis of the Civil Code. 

An accepted invoice is evidence of the alleged legal act 

The draft act clarifies and completes  the rules that are already included in the temporary article 1348bis of the Civil Code. 

The draft act states that an invoice is evidence for the "alleged legal act", provided that it is accepted by the enterprise and has not been contested within a reasonable period of time. However, an accepted invoice does not lead to an irrefutable presumption: the enterprise can still prove the opposite.  

Evidence through "probability" 

As an exception to the general principle that proof needs to be provided with a reasonable level of certainty, the proof of a "negative fact" (the fact that something did not happen) can be provided by demonstrating the "probability" of this fact. This requires there to be serious elements which support the existence of a negative fact, and it also requires that alternatives do not seem credible.  

The same rules apply to "positive facts" that are impossible to prove, or in cases where it is not reasonable to request proof, such as theft. 

Redistribution of the burden of evidence in extraordinary circumstances  

A special change in the rules of evidence concerns the possibility for the court to reverse the burden of evidence in extraordinary circumstances, i.e. in situations where the application of the normal rules on the burden of evidence would clearly be unreasonable. 

This new rule is based on the equality of arms: the court will be able to correct the imbalance between the possibilities for the parties to provide evidence. The court will have the option to redistribute the burden of evidence if, for instance, certain pieces of evidence have disappeared over time, or to sanction a party that wrongfully refuses to cooperate with delivery of evidence (or even obstructs it).  

This possibility, however, remains a last resort: if the mandatory cooperation of the other party or an investigative measure can provide a solution, it will not be necessary to reverse the burden of evidence. 

The principle of free evidence between non-enterprises up to EUR 3,500  

Currently, any action with a value of EUR 375 or more between non-enterprises needs to be demonstrated in writing. This limit will be substantially increased EUR 3,500. 

Timing 

The draft act needs to be approved by the Chamber of Representatives. The new Book 8 will enter into force 18 months after publication of the act in the Belgian Official Gazette.