The introduction of Title 1 of Book 9 of the Civil Code provides an important facelift to the law on personal securities.

With the introduction of this new Code, the legislator takes a major step toward modernizing property law. Although the remaining titles – including those on pledge, mortgage, retention of title, right of retention, and privileges – will follow later, this first title already forms the core of a more coherent regulatory framework.

Personal securities, in which a third party undertakes to guarantee someone else’s debt, now receive a clear and extensively elaborated statutory basis for the first time.

1. Why a new regulation?

Was a new Code necessary? Many will ask themselves this question.

According to the legislator, the reform is necessary because the existing rules focused too heavily on the classic guarantee (cautionnement/borgtocht) and did not sufficiently consider the various forms of personal security currently used in practice.

This intention is justified.

The existing regulations were outdated and needed to be expanded and updated so that they fit better with practice and the needs of a modern economy.

Title 1 does not constitute a radical break with the past, but rather an integrated and modernized version of what was previously contained in Articles 2011 to 2043octies of the old Civil Code regarding guarantee. The rules are reformulated and supplemented where necessary.

In addition to the classic guarantee, other forms – such as joint and several liability for security purposes, the independent guarantee, and the comfort letter – are now explicitly included in the law. The core ambition remains to develop an efficient and reliable system of securities, because lending without well-functioning security mechanisms is hardly conceivable.

2. Key aspects of the new regulation

A particular feature of the new regulation is the legal presumption that every personal security is a guarantee, unless the creditor can prove that it concerns another form of security.

Title 1 not only consolidates the previous provisions regarding guarantee, into one coherent whole, but also updates and clarifies them on several crucial points.

A first innovation concerns the explicit possibility to establish a guarantee, for all debt claims of a debtor, provided that the maximum amount for which the guarantor commits is clearly stated in the agreement. This prevents guarantors from being confronted with unlimited or unclear obligations.

Furthermore, the law clarifies how an indefinite guarantee, can be terminated. The termination procedures, the notice period, and the question of which debts the guarantor remains liable for after termination are now clearly described, so that both guarantors and creditors know where they stand.

The rules concerning situations where multiple guarantors are involved are also further elaborated. The law determines how the burdens are divided among these guarantors and confirms the subsidiary nature of the guarantee: the guarantor only becomes liable when the debtor himself fails to pay.

Additionally, the creditor’s duty to inform the guarantor and the guarantor’s right of recourse against the debtor are restated and clarified, providing more transparency and legal certainty.

For the first time, the legislator also provides a legal basis for the autonomous guarantee. This concerns a personal security whereby the guarantor commits to pay the beneficiary a certain amount upon their ‘first request’. Title 1 provides,a comprehensive legal framework for this legal instrument, with clear rules regarding demand for payment, defenses, recourse, termination, and strict consumer protection. Most provisions are supplementary law, allowing parties to deviate contractually, but within a clear legal framework.

3. Additional Protection for Consumers

The legislator has paid special attention to consumers (natural persons acting outside the scope of their profession) who provide a personal security.

Because they often cannot fully assess the significant financial risks involved, a specific protection mechanism was introduced that aligns with the existing protection for gratuitous guarantee.

Only guarantee is allowed; other forms of personal security, such as the independent guarantee or the parental guarantee, are automatically converted into guarantee by law.

Furthermore, a maximum amount must always be specified for consumer securities, and the law provides for the possibility of mitigation when there is a clear disproportion between the security and the financial capacity of the consumer.

4. Practical implications for your contracts

The provisions of Title 1 will come into effect on January 1, 2026, and will, in principle, apply only to personal securities provided after that date. However, the transitional law offers parties the possibility to voluntarily apply the new rules to existing securities. This can be useful when additional protection or clarity is desired, or when contracts need to be aligned with the new legal framework.

For new contracts, it is important to consider that the legal presumption of guarantee applies. Careless or unclear wording may lead to a qualification other than intended, with far-reaching legal consequences. Therefore, a precise definition of the agreed security is essential.

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The team at Andersen in Belgium is ready to analyze existing guarantees and other personal securities and, where necessary, adjust them to the new regulations. In addition, we can assist you in properly drafting new agreements and in legally optimizing your contractual securities.
Kim Swerts (Senior Counsel – Editor) and Lina Bashir (Associate)