Formal notice letters in Belgium: why they matter and how to draft one correctly

It looks like an ordinary letter, but legally a formal notice (ingebrekestelling / mise en demeure) is the hinge of your case. It makes clear that you demand performance, opens the way to damages, interest and termination of the contract, and can, under certain conditions, even interrupt the limitation period. Drafting a formal notice letter in Belgium therefore calls for precision: a careless or vague letter costs months, and sometimes the case. This article explains what the law requires, what the letter must contain and which special rules apply to consumers and businesses.

What is a formal notice?

The new Civil Code (nieuw Burgerlijk Wetboek / nouveau Code civil) defines a formal notice as the unilateral legal act by which the creditor informs the debtor, clearly and unequivocally, that it demands performance of the debtor’s obligation (Article 5.231 of the Civil Code). Book 5 of the Civil Code applies in principle to contracts concluded on or after 1 January 2023. Older contracts remain governed by the rules of the old Civil Code (Articles 1139 and 1146 of the old Civil Code), which are broadly similar on this point.

Why is a formal notice so important?

As a rule, a formal notice is required before you can apply remedies for non-performance: damages for late performance, termination of the contract or interest on a money debt. If you skip this step, you run the risk that the court will dismiss your claim (in whole or in part) or award interest only from a later date.

The law does provide exceptions (Article 5.233 of the Civil Code). Among other cases, a formal notice is not required where the obligation consisted of a prohibition that was breached, where performance has become impossible or is no longer of any use to the creditor, where the debtor has itself stated that it will not perform, or where the law or the contract provides that the debtor is in default by the mere expiry of the deadline.

What form must a formal notice take?

For an ordinary formal notice, the law imposes no particular form. A registered letter, a writ served by a bailiff (gerechtsdeurwaarder / huissier de justice), an email or another communication may suffice, provided the intention to demand performance is clear. Stricter rules do apply, however, to the reminder sent to a consumer and to a formal notice intended to interrupt the limitation period (see below).

The real issue is evidence: you must later be able to prove what you sent, when, and that the debtor received it. A registered letter, possibly combined with an email, therefore remains the safe standard. Also check your contract or terms and conditions: they often contain a notice clause (form, address, deadline) that you must follow strictly.

Drafting a formal notice letter: what must it contain?

• the full identity of the creditor and the debtor;
• the obligation concerned (contract, order, invoice with number and date);
• the specific failure to perform;
• for a money debt: a precise breakdown of the principal, interest and any penalty clause (schadebeding / clause pénale), with the legal basis for each amount;
• a clear deadline for performance;
• the consequences if performance does not follow within that deadline, for example court proceedings;
• a reservation of all rights, using a formula such as “with all rights reserved and without any prejudicial admission”.

What deadline is reasonable?

The law sets no fixed number: the deadline must be reasonable, in light of the nature of the obligation and the circumstances. If the contract or a specific statute sets a deadline, follow it. For a payment, eight to fifteen days is customary in practice; repairing a defect or completing works requires more time.

Formal notice to a consumer: a free reminder first

If your debtor is a consumer, the mandatory rules of Book XIX of the Code of Economic Law (Wetboek van economisch recht / Code de droit économique) apply. In the event of non-payment, the business must first send a free reminder. The consumer then has at least fourteen calendar days to pay.

That period does not start on the day of sending: for a paper reminder, only on the third working day after sending; for an electronic reminder, on the calendar day after sending. Only once it has expired may late-payment interest and a penalty clause be charged, within the statutory caps. A business that ignores these rules loses its penalty clause and late-payment interest: the consumer is then exempt by operation of law from paying the penalty clause (Article XIX.15 of the Code of Economic Law). More on Book XIX.

Formal notice between businesses

In commercial transactions between businesses, interest under the Act of 2 August 2002 on combating late payment in commercial transactions runs automatically and without formal notice from the day after the due date. A formal notice is nonetheless useful: it puts pressure on the debtor, prepares the ground for proceedings and is required for other remedies, such as termination. More on late-payment interest and penalty clauses.

Formal notice by a lawyer or bailiff: interrupting the limitation period

An ordinary reminder does not interrupt the limitation period. A formal notice sent by registered letter with acknowledgement of receipt by the creditor’s lawyer or by a bailiff, to a debtor whose domicile, residence or registered office is in Belgium, does (Article 2244, § 2, of the old Civil Code). A new period of one year then begins to run, although the claim cannot become time-barred before the end of the original period.

This interrupting effect applies only once, and the letter must contain, fully and expressly, eight statutory particulars, including the justification of all amounts claimed, the period for performance and the fact that the letter interrupts the limitation period. If one is missing, the letter does not interrupt the limitation period. More on the limitation period for invoices.

In addition, a letter from a lawyer has a noticeable effect: the debtor knows that the next step is court proceedings. Many cases are paid or settled amicably at this stage, which is the least expensive outcome for everyone.

What if the debtor does not respond?

You then choose the appropriate route: a summons (dagvaarding / citation), the IOS procedure for uncontested money debts between businesses, or a protective attachment where recovery is at risk. Also read our articles on the IOS procedure and recovering unpaid invoices.

In the event of a serious breach, a party may also terminate the contract out of court by a written notice setting out the breaches complained of, but at its own risk (Article 5.93 of the Civil Code). If the court later finds that the termination was not justified, you may yourself be liable for damages. That step therefore calls for careful consideration. More on breach of contract.

Common mistakes in a formal notice

• vague complaints without a specific deadline or amount;
• an incorrect amount or costs without a legal basis;
• an ordinary email without proof of receipt;
• waiting too long, exposing you to limitation and loss of evidence;
• applying sanctions yourself, such as stopping works or withholding deliveries, without the conditions for doing so being met.

Frequently asked questions

Is a formal notice always required before I go to court?

Not always, but as a rule it is for remedies such as damages for delay, interest or termination. It also always strengthens your case.

Is an email enough?

Legally it can be, but proof of sending, content and receipt is then weaker. For important matters, we recommend a registered letter.

How much time must I give the debtor?

A reasonable period, depending on the obligation. For a payment, eight to fifteen days is customary. With a consumer, you wait at least fourteen calendar days after the free reminder before charging interest or a penalty clause.

Does a formal notice interrupt the limitation period?

An ordinary letter does not. Only a formal notice from a lawyer or bailiff that meets the conditions of Article 2244, § 2, of the old Civil Code interrupts the limitation period, and only once.

What does a formal notice from a lawyer cost?

That depends on the case. We agree a transparent fee in advance. In many cases, a single well-drafted letter is enough.

Novex Advocaten drafts your formal notice

We draft your formal notice, check the amounts and deadlines, and immediately prepare the next step if the debtor does not respond. We work in Dutch, French, English and Arabic.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.