Construction delays and penalties: legal developments

Construction delays are a frequent source of disputes in Belgium and France. Recent case law shows that courts apply stricter scrutiny to contractual deadlines, proof of delay, and the proportionality of penalties.

1. Binding force of contracts

Both Belgian and French law recognise the principle of binding contractual force (Article 5.97 Belgian Civil Code and Article 1103 French Civil Code).

Contractual deadlines must therefore be respected unless a valid justification exists.

2. Delay penalties

In Belgium, delay penalties are valid if clearly included in the contract and must remain proportionate. Courts may reduce them if they are excessive.

In France, Article 1231-5 of the Civil Code allows judges to reduce disproportionate penalties.

Public procurement in Belgium also applies automatic penalties under the Royal Decree of 14 January 2013.

3. Formal notice and evidence

Belgian case law confirms that a formal notice is often required before damages can be claimed for delay. Without it, liability may not arise.

4. Justified delays

Delays may be excused in cases of:

• force majeure,
• exceptional weather conditions,
• client-driven changes,
• delays caused by other contractors.

The contractor bears the burden of proof.

5. Recent case law trends

Courts increasingly focus on:

• strict contractual interpretation,
• proportionality of penalties,
• detailed factual analysis of delays.

6. Practical consequences

Delays may result in:

• contractual penalties,
• damages,
• payment suspension,
• contract termination in severe cases.

Conclusion

Belgian and French courts emphasise the importance of precise contracts and solid evidence. Proper legal structuring is essential to mitigate risks.