Late payment: thirty or sixty days?
May 2022 – The law of 2 August 2002 on combating late payment in commercial transactions was amended in 2021. The new rules came into force on 1 February 2022. What should we remember?
What are the main rules on late payment?
The law of 2 August 2002 only applies to commercial transactions. A commercial transaction is any transaction between companies or between companies and public authorities which leads, in return for payment, to the supply of goods, the provision of services or the design and execution of public works and construction and civil engineering works.
Until recently, where the date or period of payment was not fixed in the contract, the payment period was thirty calendar days. This rule remains unchanged.
The thirty-day period shall in principle begin on the day [following that] on which the debtor receives the invoice or a request for payment. If this date cannot be established, the period shall begin to run on the day [following the day] of receipt of the goods or services, even if the debtor receives the invoice before the goods or services.
The parties may also agree on a different payment period. Under the old law, however, this could not exceed ninety days. The payment period was limited to sixty days if the creditor was an SME and the debtor was not. In such situations, it was however common for the debtor to start the sixty-day payment period after express acceptance of the goods, for example. He could thus still impose a payment period of ninety days.
The new law no longer allows this loophole. The maximum payment period is now sixty days, irrespective of whether or not SMEs are involved in the transaction.
Clauses that provide for a payment period longer than sixty days are deemed to be unwritten, and the period in question is reduced to thirty days!
If the debtor wishes to check the conformity of the goods, the period to be provided for this purpose must now be included in the 60-day period.
Furthermore, the debtor must provide the creditor with all the information necessary for issuing the invoice at the latest at the time of receipt of the goods or services.
Notice of default
If payment has not been made on the due date, the amount due to the creditor is immediately and automatically increased by interest and a fixed penalty of 40 euros. No notice of default by the creditor is required. Therefore, the debtor cannot contractually deprive the creditor of his right to claim interest.
1 February
The new rules came into force on 1 February 2022. The new rules therefore apply automatically to contracts concluded since that date.
Ongoing contracts
But what about current contracts? In response to a parliamentary question, the competent Minister for the Economy and Labour stated that, in his view, the (mandatory) law was immediately applicable to current contracts.
The impact of this reasoning is not insignificant: a clause in an existing contract that provides for a period longer than ninety days is deemed unwritten under the new legislation. The payment period would then be reduced to thirty days and at the end of these thirty days the debtor would be liable to pay interest and a lump-sum compensation. According to some authors, instead of considering this clause as unwritten, the judge can impose the legal maximum term of sixty days.
For current contracts, it is in any case advisable to make sure that the new maximum period has not been exceeded. If this is the case, it is important to adapt the clause so that it complies with the law.
