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The Law Breyne

Part 9

Chapter III -Type contracting agreement in accordance with the Breyne law


This model contract was drawn up in accordance with the terms and conditions contained in the law of 9 July 1971 and the implementing decree of 21 October 1971 regulating the construction and sale of housing to be built or under construction.

Warning: Although this contract has been drawn up in accordance with the law and its implementing decree, it is legally valid only insofar as it is completed correctly and completely.

ASSIGNMENT AGREEMENT IN ACCORDANCE WITH THE BREYNE LAW The company: ……………………………..…………………....................... .....................
with registered office at: …………………………………………………………………………………………….……..
VAT-BE- ………….…………………….……………………..
RPR: ……..…….……………………
represented by Mr/Mrs: ..……………….………..……………….………
authorized for this purpose on the basis of article ……… of the articles of association published in the annexes to the Belgian Official Gazette on the date of ……………………………………..
at page ……………………
or
Mr. Mrs: …………………………............…………………..…………………..………. (1)
residing at ..…………………………………………..………..……………………….…………
VAT-BE- ………….…………………….……………………..

here under"the contractor"called

AND the Lord: …………………………………………………….………………….…………….………… (1) ,
born in …………………………………………………….…..………., on ……………..……………………
and Mrs: ……………………………………………………………………..…………………………. (1) ,
born in …………………………………………...………., on ……………….……………………….
cohabiting at …………………………………………………….………….……………..…………………….,
married under the system of …..………………………………………….…………………..………,

here under "the contractor" called

The parties set out as follows:

The client has become the owner of the land on which the building, subject of the agreement below, will be erected, by authentic deed on the date of ...…………………..……..

This land is located in the municipality of .……………………………...………….................., ..... ...........………………………………………………………………….......... street, no. .............., with an area of .............. ares, cadastral section ...…………………………… .…,
no.………………..
A subdivision permit was granted for this land on the date of ............................................... ........ (²) 


Article 1

1. Object


-The contractor undertakes to build the building in accordance with the plans and specifications enclosed herewith, insofar as this agreement has not legally deviated from them. These documents expressly state the manner in which and the materials with which these works will be carried out. They were drawn up by Mr/Mrs .……………………………………………..…..................... ..........., architect registered on the table of the Council of the Order of Architects or authorized to practice his profession in Belgium, residing at ………………………………… ……….…………..

- Health and safety coordination during the realization of the building has been entrusted: (delete as appropriate)

or * to the contractor and is the subject of a separate agreement stating the fee due for this assignment and which is therefore not part of the price referred to in art. 3 of this agreement.

(²) Strike out if the land is not in an allotment for which a subdivision permit must be granted.

either * to Mr./Mrs.: ……………...………………………….., residing at …………………….…………………… ., VAT-BE- …………………….…………...……….…… or * to the company: ………………………………… …….., with registered office at ……...………………….……………….……, VAT-BE- ………………………………... … RPR: ………….……………… in the person of Mr/Mrs: ……………………………………………………..

2. Urban planning permit(cross out what does not apply)

or * For the attached plans, an urban development permit has been granted to the client by the competent urban development services of ............................... ................ on date of ....…….……...…..., no. ............ ......., and under the following conditions(³) : ………………………………………………….…………………………….. .………………...… ……………………………………………………………....…………………………. ……………… ……….……………………………...……………………………………………………………….. ..

either * The client declares to have submitted an application for a building permit on the date of .………………………. The agreement is concluded under the suspensive condition that the client obtains this building permit within a period of ………… months after the signing of the agreement(4) . The client undertakes to provide the contractor with a certified copy of the building permit and its conditions within the period of 1 month after receipt of the notification thereof.

3. The layout of the building

The building will consist of(5) :

(3) This concerns the conditions imposed by the authorities responsible for town planning for permitting construction.

(4) The contractor must ensure that the deadline is well specified, taking into account, for the purposes of Articles 4 and 11 of this contract, the possibilities of his planning.

(5) Give an accurate description of the layout of the building.

...........…………………………………………………………………………………….. .............................. .................... ................................……………………………………………… ………………………. .................................................... ..………………………………………………………………………. .................................................... .................................................... ...........................

Article 2 - Financing(cross out what does not apply)

either * The client does not make the conclusion of the agreement dependent on the suspensive condition that it obtains financing.

either * The agreement is concluded under the suspensive condition that the client obtains financing under the following conditions:

- minimum loan sum: …………………………..……..…………. €;
- maximum interest rate: ..............................................%;
- minimum term of the loan: ....................... years.

If this condition is not fulfilled within a period of 3 months after the signing of the agreement, this agreement will cease to exist.

However, if the client has not taken the necessary steps at the appropriate time with his financial institution in order to obtain financing, the agreement will be deemed to have been unilaterally broken at the expense of the client.

Article 3 - Price

1. 
The building will be erected:

a. or * for the global price (excl. VAT) of …………..………………….………. € (6) .

or * on the basis of the fixed unit prices stated in the measurement appended to this agreement, for the sum (excl. VAT) of …………………………...………… € (calculated in function of the probable quantities stated in the same measurement)(6) .

(6) Strike out what does not apply.

This price includes all works necessary for normal habitability, which in the present case is defined by the parties as the completion of only those works expressly described in Article 1 and in the documents referred to in that Article.

This price is deemed to have been made on the day of the signature of this agreement, and includes(7) : ...……………………………………………………………… ……………………………………………………..... ......................... ..........………………………………………………………………………………………………… ……………… …………........………………………………………………………………………………………… ………… ………………........…………………………………………………………………………………………………

b. VAT: …………%, or ……………………………………..…………. €
or in total: …………………………………………………… €

Any adjustment of the VAT rate will be made to the advantage or disadvantage of the client.

2. Method of payment The prize is paid in the following way:

a) upon signing this agreement, an advance or cash advance(8) in the amount of ………………..……..…..…………. €(9) , deductible from the first or first monthly advances, determined under (b) below.

either * hereby paid in cash, for which this agreement serves as a receipt(8) ;

either * payable by bank transfer or post(8) ;

b) by monthly advances in the amount of the work actually carried out.

(7) Indicate whether or not the price includes all kinds of charges, the costs of removing trees and shrubs, leveling the ground, connection to the water, gas, electricity and sewage network, etc.

( 8 ) Strike out what does not apply.

(9) This advance or hand money may not exceed 5% of the total construction price.


If the client does not make the payment of those advances within a period of ..... days after the date of sending the payment request, default interest will have to be paid by operation of law and without notice of default on the sums still due at the interest rate of 8 .5% per year, up to the number of calendar days lateness. This late payment interest will be increased by operation of law and without notice of default by a fixed compensation of 10%, with a minimum of €124.

In the event of non-compliance with these terms of payment, the contractor also reserves the right to suspend the works by simple notification sent to the client by registered letter, whereby he will take all necessary measures of preservation at the expense of the client.

If the work is the undivided property of several persons, they are jointly and severally liable for the payments required by this agreement.

3. Review

The price set in this article is subject to revision. The revision takes place at each payment bracket. The amounts to be paid are determined by applying the formula below to the amount of each installment of payment or progress of the works, as established on the basis of the contract:

          _cc781905-5cde-3194 -bb3b-136bad5cf58d_    s      _cc781905- 5cde-3194-bb3b-136bad5cf58d_  i
p = P (a --- + b --- + c)
          _cc781905-5cde-3194 -bb3b-136bad5cf58d_    S      _cc781905- 5cde-3194-bb3b-136bad5cf58d_I

where P represents the amount of the State determined on the basis of the contract and p the adjusted amount taking into account fluctuations in wages and in social and insurance charges related to wages, as well as fluctuations in the prices of materials, raw materials or products used or consumed in construction.

In the above revision formula, the term as/S is based on the average hourly wage, formed by the average of the wages of skilled, specialized and unskilled workers, as determined by the National Joint Committee of the Construction Company for the category corresponding to the place where the construction site of the contract is located, increased by the total percentage of social charges and insurance accepted by the FPS Economy.

In this term, S is the average hourly wage in force on the date of signature of the contract increased by the total percentage of social charges and insurances adopted by the FPS Economy on the same date, and s is the same average hourly wage as it was recorded before the start of the works for which partial payment is requested, increased by the total percentage of social charges and insurances adopted by the FPS Economy on the same date.

The terms i and I included in the parameter bi/I represent the monthly index calculated on the basis of an annual consumption of the main materials and raw materials by the construction company in the domestic market. This index figure is determined by the Commission of the Price List of Building Materials, which has its seat in the FPS Economy. Its value is recorded every month.

I is the index number on the day of signature of the agreement; i is the index figure as it was recorded before the start of the works for which partial payment was requested; c is the fixed term that is not subject to revision. In the revision formula of the present agreement, parameters a, b and c respectively have the fixed values specified below, taking into account that the construction price can only be revised by a maximum of 80% and that the value assigned to parameter a does not exceed 0.50 may be:

          _cc781905-5cde-3194 -bb3b-136bad5cf58d_           _cc781905 -5cde-3194-bb3b-136bad5cf58d_         _cc781905-5cde-3194- bb3b-136bad5cf58d_           _cc781905- 5cde-3194-bb3b-136bad5cf58d_     _cc781905-5cde-3194-bb3b- 136bad5cf58d_   a = ……; b = ……; and c = 0.20

The values assigned to parameters a, b and c must not undergo any change during adoption.

The revision formula is solved in the following way: each of the fractions s/S and i/I is converted to a decimal number with at most five decimal places, the fifth of which is increased by 1, if the sixth is equal to or higher than 5.

For the determination of the products obtained by multiplying the quotients thus obtained by the value of the corresponding parameter, only the fifth decimal place is taken into account, which is also increased by 1, if the sixth is equal to or higher than 5.

The revision does not apply to work performed during a period of delay attributable to the contractor.

Article 4 - Commencement of the works and completion time(cross out what does not apply)

either * The works start on ............................................ ..........…..………….

either * The works will commence within a period of 30 calendar days from the moment the contractor becomes aware of the fulfillment of all conditions precedent on which the agreement was made dependent.

The execution period of the construction works, which runs until the building can be taken into provisional acceptance, is .................. working days from the date of commencement of the works.

Days on which unfavorable weather conditions directly or indirectly result in making work impossible for at least 4 hours are not counted as working days; Saturdays, Sundays and legal holidays; the annual holidays and the compensatory rest days.

Any event that constitutes an insurmountable obstacle to the normal performance of the contractor's obligations or that forces him to temporarily or permanently stop the works, is considered a case of force majeure (e.g. accidents, wars and their consequences, strikes or lockout).

The temporary interruption of the works due to force majeure entails, by operation of law and without compensation, an extension of the originally determined execution period, by a period equal to the duration of the interruption, plus, with the architect's consent, the period of time normally needed to restart work on the construction site.

If the execution of the agreement is interrupted for a period of at least 30 calendar days, by order or through the fault of the client, the latter must pay the contractor an advance on the current payment installment to the value of the work already carried out.

For interruptions on order or due to the fault of the client, other than those due to bad weather and which are provided for in the special specifications, which occur in the contractually determined implementation period and wholly exceed 1/20th of this period and at least 10 working days, the contractor has the right to claim compensation, the amount of which is determined by mutual agreement; however, he may not invoke the discussions that have taken place in this connection in order not to resume the execution of the works.

If the client orders additional work during the execution of the agreement, the contractor also reserves the right, with the consent of the architect, to demand an extension of the originally determined execution period. This extension is recorded in a separate document signed by the contractor and the client.

Delay compensation

In the event of a delay in the execution or delivery attributable to the contractor, the latter must pay the client by way of fixed compensation ...……................. € per day. Pay; this sum includes the normal rental price that the client could receive when renting out the completed property, as well as other damage suffered.

Where applicable, this compensation is only due for the period following the notice of default sent by the client to the contractor by registered letter.

Article 5 - Delivery

a) Provisional acceptance

1. The provisional acceptance implies the approval by the client of the works delivered to him and excludes any recourse on his part for visible defects, provided, however, that the condition of the works does not deteriorate during the warranty period.

The term of the ten-year liability starts on the day of the provisional acceptance.

2. To enable provisional delivery, the works must be completed in their entirety, which is not prevented by minor imperfections that can be repaired during the guarantee period, and the goods must be able to be used according to their intended purpose.

3. The provisional delivery of the building takes place after a contradiction between the client and the contractor. Only a written and contradictory deed of the parties counts as proof of the provisional acceptance of the work.

The contractor requests the provisional acceptance in writing by requesting the client and the architect by registered letter to proceed with it within a period of 15 days following the day on which that request was sent.

The works are deemed to be ready for provisional acceptance, subject to proof to the contrary, on the date of completion indicated by the contractor in its request for acceptance.

Any refusal by the client to proceed with the provisional acceptance must be notified to the contractor by registered letter, stating reasons, within a period of 15 days after the day on which the contractor has sent the request for acceptance. .

Any refusal by the client to accept provisional acceptance must be notified to the contractor by registered letter, stating reasons, within 8 days of the day of provisional acceptance.

If the reasoned refusal to proceed with or accept the provisional acceptance of the works has been notified to the contractor, the contractor may either accept the reasons for the refusal and, after carrying out the desired repair works, issue a new request delivery, either amicably or otherwise legally request the appointment of an expert who must examine the merits of the refusal to take delivery and determine the possible costs of the repair works.

If the client does not follow up on the contractor's written request to proceed with the provisional acceptance within the above-mentioned period of 15 days, the contractor will give notice to do so by bailiff's writ. The client is then deemed to have accepted the provisional delivery if it has not appeared within 15 days after the reminder for delivery on the date specified in the bailiff's writ.

4. However, and subject to evidence to the contrary, if the client moves into or uses the good before the provisional acceptance, he is deemed to have tacitly accepted this provisional acceptance.

b) Final delivery

The final delivery of the building takes place one year after the date of the provisional delivery. The contractor requests the final acceptance in writing by requesting the client and the architect by registered letter to proceed within a period of 15 days following the day of dispatch of that request. The final delivery takes place after a contradiction between the client and the contractor. Only a written and contradictory deed of the parties counts as proof of the final delivery of the work.

Any refusal by the client to proceed with the final delivery must be notified to the contractor by registered letter, stating reasons, within a period of 15 days after the day on which the contractor has sent the request for delivery.

Any refusal by the client to accept the final acceptance must be notified to the contractor by registered letter, stating reasons, within eight days of the day of final acceptance.

If the reasoned refusal to proceed with or accept the final acceptance of the works has been notified to the contractor, the contractor may either accept the reasons for the refusal and, after carrying out the desired repair works, make a new acceptance request, either amicably or otherwise legally request the appointment of an expert who must investigate the merits of the refusal to accept delivery and determine the possible costs of the repair work.

If the client does not follow up on the contractor's written request to proceed to the final delivery within the above-mentioned period of 15 days, the contractor will give him notice to do so by writ of bailiff. The client is then deemed to have accepted the final delivery if, within 15 days of the reminder, he does not appear for delivery on the date specified in the bailiff's writ.

Article 6 - Warranty period for minor hidden defects

During the period of 1 year after the provisional acceptance, the contractor guarantees the slight hidden defects that are not covered by articles 1792 and 2270 of the Civil Code.

However, any legal claim on that account is only admissible if it is instituted within a period of 6 months after the day on which the client became aware of the defect.

Article 7 - Ten Year Liability

The guarantee provided by the contractor under Articles 1792 and 2270 of the Civil Code accrues to the successive owners of the building.

Article 8 - Transfer of property and risks

The client becomes the owner of the building to be constructed as the materials are processed and incorporated into the ground or the building under construction. However, the transfer of the risks referred to in articles 1788 and 1789 of the Civil Code will only take place upon provisional acceptance of the works.

Article 9 - Execution and modification of the works

If the client or the architect imposes on the contractor a method or materials of a certain quality, origin or type, and this notwithstanding the written and reasoned reservation of the contractor, the latter is released from any liability resulting from from defects due to the choice of this method or materials, provided that no errors in the processing of the materials can be attributed to him.

If a specialized design office or engineer is specifically required by the specifications, the contractor shall not be liable in any way for a conceptual error or any exceeding of the quantities originally envisaged, even if he is contractually charged with the remuneration of the design office or engineer. Where appropriate, the contractor is entitled to a surcharge for the additional or changing work that has become necessary, as well as for the quantities that are processed in excess of the originally planned.

In order to be valid, the notifications concerning the execution of the works between the client, the contractor and the architect must be made in writing.

However, the contractor may, by all other legal remedies, provide proof of the changes ordered by the client or by the architect who is expressly authorized to do so.

The works commissioned by the client will be carried out by the contractor or for his account and under his liability. If the client entrusts himself or a third party with the execution of all or part of the planned works, or abandons the execution of those works in whole or in part, he undertakes to reimburse the contractor for all his expenses, works and loss of profit estimated at ………% of the amount of work not carried out.

Article 10 - Nuisance to neighbors

The client is fully liable to third parties, and in particular to his neighbours, for damage that is the inevitable consequence of the execution of the works, if the contractor cannot be blamed for any fault.

Article 11 - Guarantee(depending on whether or not the contractor is appropriately accredited, the guarantee referred to under(*) or the guarantee referred to under(**) must be provided to the client: strike out what does not fit)

(*) Guarantee

With regard to the nature and scope of the works assigned to him, the contractor meets the conditions of the law of 20 March 1991, regulating the recognition of contractors of works. It is recognized in category D, class ..……….. under the number ....................…….... Therefore, it undertakes to provide security, in accordance with the relevant legal and regulatory provisions, either in cash, in public funds, or in the form of a joint or global bond(10) the amount of which is equal to 5% of the price of the building , rounded to the nearest ten in euros. This amount amounts to …………..…………. €.

Within the period of 30 days after the signing of this agreement or, where applicable, within the period of 30 days after the moment the contractor becomes aware of the fulfillment of the conditions precedent to which the agreement was made subject, the contractor must provide the client with proof of the said security, signed by the Deposit and Consignation Office.

In the event of delay in the performance or in the event of full or partial non-performance of the agreement attributable to the contractor, the client may pre-deduct from the amount of the surety the sums due to it due to the loss suffered._cc781905-5cde-3194- bb3b-136bad5cf58d_

Strike out what does not fit.

The surety bond is released in halves, the first half at provisional acceptance, the second half at final acceptance, and this in the following way: within the period of 15 days after the request addressed to it by the contractor and without prejudice to the previous paragraph, the client grants the Deposit and Consignation Office waiver for the first or second half of the suretyship, as the case may be. After the expiry of this period of 15 days, the contractor is entitled, by way of compensation owed by the client, to interest at the statutory interest rate on the amount of the surety for which no release has been granted.

(**) Completion Guarantee

The contractor does not meet the conditions of the law of 20 March 1991 governing the recognition of contractors of works with regard to the nature and scope of the work assigned to him. Therefore, within 30 days of signing this agreement, he must provide the client with proof that a credit institution within the meaning of the Law of 22 March 1993 on the status and supervision of credit institutions, or a mortgage company within the meaning of the Law of 4 August 1992 on mortgage credit, undertakes, as joint and several surety of the contractor towards the client, to pay the sums necessary for the completion of the building.

If the agreement was concluded under one or more conditions precedent, this period of 30 days will run from the moment the contractor becomes aware of the fulfillment of the conditions precedent to which the agreements were made dependent.

The commitment of the guarantor ends with the provisional acceptance of the works.

Article 12

Any clause that conflicts with Articles 3 to 6 and 8 to 11 of the Act of 9 July 1971 regulating housing construction and the sale of housing to be built or under construction, or with the Royal Decrees implementing Article 8, paragraph 2 of the same law, which appears in any document supplementing this agreement, shall be deemed not to have been written.

The client has the right to invoke the nullity of the agreement or of the provision contrary to the law, if the provisions of its articles 7 and 12 or the provisions taken in implementation of these articles are not complied with. The text of both articles follows in full below:



Article 7 of the law of 9 July 1971

The agreements referred to in Article 1 as well as the promises for such agreements shall:

a) indicate the identity of the owner of the land and of the existing structures;

b) indicate the date of issue of the building permit and the conditions of that permit or the agreement on the condition precedent of obtaining a building permit; in the latter case, the applicant for the building permit must undertake to provide his co-contractor with a certified copy of this permit and its conditions, within one month of receipt of notification of the decision on the building application ;

(ba) indicate whether or not the buyer or principal makes the agreement conditional on obtaining financing for a minimum amount, subject to conditions to be determined; this condition precedent can never apply for longer than 3 months, counting from the date of conclusion of the agreement;

c) include a precise description of the private and common areas that are the subject of the contract;

d) include, as an annex, the precise plans and detailed estimates of the works covered by the contract. The manner in which and the materials with which these works will be carried out must be explicitly stated and, if applicable, whether and under what conditions this can be deviated from. These plans and specifications must be signed by an architect authorized to practice that profession in Belgium and, if it concerns an apartment, a copy of the basic deed drawn up in authentic form and of the regulations of co-ownership must be added. The absence of these attachments in the authentic deed can be covered by the notary's statement, in this deed, that these documents are in the possession of the parties;

e) indicate the total price of the house or apartment or, in the case in question, the total price of the renovation or extension and the method of payment; mention that the price is subject to revision. This price includes all works necessary for normal habitability;

(ea) mention the existence of the regional public housing allowances and communicate the relevant basic conditions as an appendix to the agreement;

f) state the date of commencement of the works, the execution or delivery period and the compensation for delay in the execution or delivery; these payments must correspond at least to a normal rental price for the finished goods to which the agreement relates;

g) determine the manner in which delivery will take place;

h) contain the acknowledgment of the parties that they have had knowledge of the information and documents referred to in this Article for 15 days.

In any case, the agreement states in a separate paragraph, in different and bold characters, that the buyer or client has the right to invoke the nullity of the agreement or the nullity of a provision contrary to the law in the event of non-compliance with the provisions of or under Articles 7 and 12, the text of which must be incorporated in its entirety into the agreement.

The King may determine the minimum conditions to be met by the provisions of this article.



Article 12 of the Law of 9 July 1971

When the seller or the contractor meets the requirements of the law of 20 March 1991 on the recognition of contractors with regard to the nature and scope of the works assigned to him, he is obliged to provide security, the amount of which is determined by the King , as well as the manner in which it is deposited and released.

If the seller or the contractor does not meet the requirements of the law of March 20, 1991, as stipulated in the preceding paragraph, he is obliged to guarantee either the completion of the house or apartment, or in the case in question, of the renovation or extension, or, in the event of dissolution of the contract for non-completion, the reimbursement of the sums paid.

The King determines the nature of the guarantee and the conditions under which it is granted, as well as the manner in which the purchaser or client is informed thereof. They have a privilege on this guarantee, which ranks immediately after the privilege provided for in Article 27, 5°, of the Mortgage Law.


Article 13 - Regional government subsidies for housing

There are regional government subsidies for housing. The basic terms and conditions thereof are added to the agreement as an appendix.

Article 14

The parties confirm that they have had knowledge of the documents and data mentioned in this agreement for 15 days.

Article 15 - Disputes

For disputes concerning the performance or interpretation of this agreement, the client will sue before the courts of the place of residence/registered office of the contractor(11) , which have exclusive jurisdiction.

(delete the following 4 paragraphs if the provisions do not apply)Before any appeal to the court, any technical dispute relating to the execution of the works that are the subject of the present contract may, at the request of one of the construction participants, be brought before the Conciliation Commission Construction, Espace Jacquemotte, Rue Haute 139, 1000 Brussels ( tel. 02/504.97.86 - fax 02/504.97.84). Once the Conciliation Commission has become aware of the dispute, the other construction participants who have accepted the current jurisdiction clause can no longer evade the Commission's jurisdiction. The Reconciliation Committee may appoint an expert conciliator, if necessary assisted by a sapiteur, who will act in accordance with the regulations of the Reconciliation Committee on Construction.

This expert assists the construction participants with his technical knowledge and strives for reconciliation in the first place. In case of non-conciliation, the expert-conciliator draws up a reasoned technical report that is binding for the construction participants involved.

The parties acknowledge that they are in possession of a copy of the Rules and that they fully agree with them.

Each party must include or have included this clause in the contract(s) it concludes with third parties for the purpose of realizing the construction work.

Drawn up in …………………………….. in ……… copies on ……………………………….


          _cc781905-5cde-3194 -bb3b-136bad5cf58d_    De aannemer,    _cc781905-5cde-3194-bb3b- 136bad5cf58d_           _cc781905-5cde- 3194-bb3b-136bad5cf58d_                 _cc781905-5cde -3194-bb3b-136bad5cf58d_         _cc781905-5cde-3194-bb3b- 136bad5cf58d_           _cc781905-5cde- 3194-bb3b-136bad5cf58d_                 The client,




 


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