What company insiders need to know about new rules on personal securities in Belgium

As part of the reform of the Belgian Civil Code, the new title 1 of book 9 of the Civil Code on personal securities entered into force on 1 January 2026. 

The new regime clarifies and modernises the personal securities, including the suretyship (borg/cautionnement) and consumer suretyship (consumentenborg/caution-consommateur). It also codifies the autonomous guarantee (autonome garantie/garantie autonome) and recognises other personal securities such as the letter of comfort (patronaatsverklaring/lettre de patronage).

Title 1 of book 9 applies to personal securities granted as of 1 January. Unless parties decide otherwise, the old Civil Code remains applicable to future effects of personal securities granted before 1 January (for example, payment by the security provider).

Founders, directors and shareholders are regularly asked to grant personal securities in support of their company's commercial and financing arrangements. These commitments can have a far-reaching impact on their personal patrimony. 

What are the main types of personal security under Book 9 of the Civil Code?

Suretyship or accessory personal security

Suretyship remains the archetype of personal securities. The security provider commits to the creditor of a principal debtor, to pay the secured obligations in case the latter fails to do so. 

Suretyship is accessory: depending on the validity, modalities, size and continued existence of the secured obligation. The creditor may call on the surety only after it served a notice to the principal debtor and attempted to obtain payment from it (unless the surety agreed to be jointly and severally liable).  The security provider can invoke all exceptions of the underlying contract between the creditor and the debtor (except for personal exceptions that were known to the security provider). 

A special category of suretyship is the consumer suretyship, which replaces the abolished figure of gratuitous suretyship and includes stronger protective mandatory rules for the security provider.

Autonomous guarantee or autonomous personal security

The security provider granting an autonomous guarantee undertakes to pay the beneficiary (that is, the creditor of the principal debtor) upon demand if pre-determined conditions are fulfilled (e.g. providing documents evidencing that the principal debtor is in default). 

The guarantee is "autonomous" and does not depend on the validity, modalities, size and continued existence of the secured obligations of the principal debtor (as opposed to the surety). 

The security provider cannot invoke exceptions of the contract between the creditor and the principal debtor. The security provider may however rely on exceptions or other modalities arising from its own relationship with the beneficiary.  

Manifestly abusive or fraudulent demands must be refused. 

Autonomous guarantees are often provided by a bank, an obligor or parent, and less frequently by individual such as founders or directors. Autonomous guarantees are frequently used in financing, international trade and lease transactions.

Letter of comfort; Promise to procure performance; Joint and several co-debtor

Book 9 of the Civil Code furthermore also encompasses other types of personal security, such as the letter of comfort (patronaatsverklaring/lettre de patronage), the promise to procure performance (porte‑fort d’exécution/ sterkmaking tot uitvoering) and joint liability as personal security.

Important considerations

Terminology matters

By principle, any personal security is presumed to be a suretyship and any doubt on the scope of personal security will be interpreted in favour of the security provider. 

Moreover, most rules are suppletive, so parties can opt out and tailor contractually to their needs, save for definitions and provisions expressly designated as mandatory (e.g. consumer suretyship and certain requalification and abuse rules).

To avoid requalification as surety when another type of personal security is intended, there is a need for precision and clarity in writing the intention of parties by using the correct terminology to name the instrument (for example, terms such as autonomous surety, surety on first demand or abstract guarantee should be avoided).

The scope, cap, documentary conditions, terms and release and whether certain non-mandatory rules of title 1 of Book 9 of the Civil Code apply or not, also need to be specified.

Determine the maximum secured amount 

The Civil Code recognises the suretyship for all debts (borgtocht voor alle schuldvorderingen/cautionnement pour toutes créances), including future obligations, with strict safeguards:

• A maximum amount must be stated (otherwise the surety is limited to obligations existing at inception).
   
• Covered obligations must be sufficiently determinable and reasonably foreseeable.
   
• The surety for all debts only applies to debts arising from contracts between the same parties, unless parties decide otherwise. 

Parties will need to look at setting clear caps on their personal exposure, identify the contracts or obligations that are covered, and ensure they are involved or informed about material changes of the underlying obligations.

Anticipate M&A and transfer scenarios

The Civil Code protects providers of a suretyship in the case of (de)mergers, splits or similar undertakings involving the principal debtor or creditor.

On the principal debtor side, the suretyship does not extend to debts that belong to a company that was absorbed by the principal debtor and debts that are assigned to a principal debtor following a transfer or contribution of an undertaking. 

On the creditor side, if  the principal debtor has debts with creditor A and creditor B and the security provider only provided a surety for all debts of creditor A, then the surety will not cover debts of creditor B in case the latter subsequently merges (by absorption) into company A. 
 
Parties can derogate from these protective rules. 

The surety itself remains in place in the case of a change of creditor or principal debtor following a (de)merger, split or similar undertakings (or after such person has deceased), as well as after a transfer of the secured obligation to a new creditor.

With respect to autonomous guarantee and unless parties decide otherwise, transferring the secured obligation does not entail the transfer of the autonomous guarantee. Furthermore, autonomous guarantees cannot be transferred to another beneficiary without the agreement of the security provider. However, once the autonomous guarantee is enforced, the claim of the beneficiary can be transferred or pledged without agreement of the security provider. 

Finally, following a (de)merger, split, similar restructuring or death of the security provider itself, the suretyship will, in principle, continue to be in full force and effect by the legal successors. 

When granting a suretyship or autonomous guarantee as director, shareholder or founder, it is key to verify to which extent the surety covers debts that emerge as a result of a (de)merger or similar restructuring and to factor in the potential non-transferability of an autonomous guarantee.  

When reviewing personal securities as part of a legal due diligence, it is important to assess how such personal securities will be affected by the envisaged transaction or pre/post completion restructurings.

Timing is everything 

A suretyship can have a fixed or indefinite duration. In case of the latter, the suretyship may be terminated with a reasonable notice period, set by default at 45 days in the Civil Code (but can be shorter if agreed upon), with coverage preserved for debts arising before its expiry. 

For autonomous guarantees, if no expiry mechanism is identified, termination of the guarantee requires a reasonable notice period.
Parties should negotiate clear end dates and expiry mechanisms in their personal securities and integrate notice periods and expiry dates into your contract management. 

They will also need to bear in mind that the termination of a mandate as director or the sale of controlling participation in a company does not automatically trigger the termination of any personal securities granted in favour of their company.

Consumer qualification: beware of relatives and friends 

The new chapter on consumer suretyship adopts a broader criterion of consumer. 

A consumer is defined as any natural person who acts for purposes that fall outside their trade, business, craft or profession.

If the principal debtor is a legal entity, this chapter does not apply when the consumer can substantially influence the decision-making of that legal entity (for example being able to determine the appointment of the majority of directors or the company's strategy). 

There are important elements of the consumer suretyship of which parties should be aware. A consumer can only grant a suretyship, therefore excluding any autonomous guarantees or other personal securities (which would be requalified to a surety). Also, the Civil Code introduces stricter pre-information duties, ongoing information duties and form requirements (although some form requirements became more flexible).

A consumer's suretyship must not be manifestly disproportionate to the consumer's means. Instead of nullifying the surety, the sanction is now a reduction of the obligation to the amount the consumer was able to meet at the time the suretyship was entered into.

In principle, directors, founders and controlling shareholders of the legal entity acting as principal debtor fall outside the consumer regime. However, their spouses, cohabiting partners, relative and friends (even if they perform certain tasks such as assisting with the accounting) may potentially fall within its scope.

Osborne Clarke comment

The modernisation of the legal framework contributes to making personal securities more attractive and better aligned with a globalised business environment, while also strengthening protection for security providers. 

Directors, founders and controlling shareholders should bear in mind these new rules when acting as a security provider for their company in order to manage their personal exposure. 

Osborne Clarke can help you review your existing contracts and draft robust personal security contracts that protect both your business interests and your personal patrimony.