Todd Belgium.

A treatise on Belgian law: containing a complete translation of the entire ... online

. (page 15 of 64)
Online LibraryTodd BelgiumA treatise on Belgian law: containing a complete translation of the entire ... → online text (page 15 of 64)
Font size
QR-code for this ebook


(2) The objects of the society. (3) An exact description of
the shareholders, and (4) Tlie manner in which the capital
of the company is made up, and the minimum amount of
which it must consist. It must also state the society's
duration^ which may not exceed thirty years, the con-
ditions under which members may be admitted, may leave
and may be expelled from the society, and how and by
what persons the society's business shall be managed and
controlled, and in case of necessity the method of payment
and discharge of the manager, the directors and tne com-
missaires, the extent and the duration of their powers to
act, the rights, method of calling them together, majority
required for voting and the method of voting, the
way in which profits and losses are to be divided, and the
extent of the liability of the shareholders, but provided
there is nothing in regard thereto set out in the articles of
association bringing the company into existence, then
the following rules apply : (1) The society shall exist
for ten years. (2) The shareholders may retire from the
society, but they cannot .be expelled except for breach of
contract, and such expulsion can only be decided upon by
a general meeting. (3) The society's affairs shall be
managed by a director, and shall be supervised by three
commissaires to be appointed in the same manner as in the
case of limited liability companies. (4) All the mem-
bers may vote at a general meeting, and there shall be
equality of votes amongst them. (5) The profits and losses
o( the society shall be divided each year into equal halves,
one half going to the members by reason of their
shares, and the other half being divided amongst them as
interest on their contributions. (6) The whole of the
members shall be jointly and severally liable. The
society must keep a register of members, and this
register must be inspected and initialled or stamped as
having been inspected by one of the judges of the Com-
mercial Court, or by the Burgomaster of the Commune,
free of expense. Under sub- heading (2) membership of
the society and retirement and expulsion therefrom is
proved as follows : The admission of a member is to
be evidenced by his signature in the society's register.



Digitized by



Google



140 Code of Commerce (Commentary).

Retirements must take place within the first six months of
the trading year. Such retirement is to be evidenced by
an entry made in the register and signed by the retiring
member, and these entries must be dated and signed by
him and by the person who has the management and signa-
ture of the society. Should the manager refuse to do what
is necessary, the same may be carried out in the registry of
the justice of the peace in whose district the registered
office of the society is situate. Expulsion of a member is
to be evidenced bj^ the preparation of a minute of proceed-
ings by the person having the management, who must
sign the same. Such minute must set forth the facts
justifying the expulsion, and that the same has been
decided upon in accordance with the articles of association.
It must be entered in the register of members, and a copy
of it must be forwarded to the expelled member within
two days by registered letter. In the event of the death,
insolvency, or deprivation of civil rights of a member, his
heirs, creditors or representatives are entitled to recover
his share in accordance with the method prescribed by
Article 96, but such persons have no right to require
the society to be wound up. Persons retiring or who
have been expelled from the society remain liable in
respect of their engagements towards it for a period of five
years from the date of their leaving the same or being
expelled therefrom. Each member is entitled to a share
certificate setting forth the title of the society, the
Christian and surnames, occupation and residence of the
person entitled, and the date of his admission as a
member, and the document must be signed by the person
entitled and by the person having the management and
the trading signature of the society. It must also set
out further particulars which need not be further
dealt with here. The third sub-heading with regard to
the protection of the rights of others provides that each
year at the time appointed by the articles of associa-
tion the directors must prepare an inventory in the form
prescribed by Article 62 above, and a reserve fund must be
formed in accordance with the same Article. In all docu-
ments emanating from the society, the name of the society
must be preceded or followed by the words ''societe
co-operative." Persons interfering in the business of the
company may be rendered liable in respect of transactions



Digitized by



Google



As TO Other Kinds of Companies. 141

in which they have intervened. The balance sheet mast
be deposited within fifteen days of its adoption at the
Registry of the Commercial Court of the district where the
registered office is situate. The managers of the society
must, every six months, deposit at the same registry a list
in alphabetical order, showing the names, addresses, and
occupations of all the members, which must be dated and
certified as true by the signatories, and these persons are
liable for any false information which may be set forth
therein. Within eight days of their appointment,
managers of co-operative societies must deposit in the
Registry of the Commercial Court an extract of the
document conferring the office upon them ; they must also
give a specimen of their signature in the presence of the
Registrar or cause the same to be forwarded to the
Registrar duly authenticated. The public are to be at
liberty, free of expense, to inspect lists of members and
agreements appointing managers and also the society's
balance sheets at the registry, and they may also take
copies thereof on paying only the cost of making such
copies.

Section 8 deals with the winding-up of companies, and
Article 112 provides that in the absence of provision to the
contrary in the articles of association the method of
winding up and the appointment of liquidators, the
managing partners in partnerships carried on under a
trading name or under companies en commandite and also
in co-operative societies, and the directors in limited
liability companies shall, so far as third persons are con-
cerned, be considered as liquidators, and they are given by
Articles 114 — 120 the necessary powers to enable them
to wind up the company's aflfairs, to settle its debts and to
get in all outstanding property to which it is entitled, and
by Article 121 it is provided that when the liquidation has
been completed, the liquidators are to make a report to a
general meeting and submit their accounts with vouchers.
The meeting is then to appoint commissaires or auditors
to examine these documents and must fix a date for a fresh
meeting to be held at which, after the report of the
auditors in* regard to the proceedings of the liquidators has
been presented, the winding-up is to be completed, and
when this has been done, notice thereof must be published by
advertisement in accordance with Article 10 hereof. The



Digitized by



Google



142 Code of Commerce (Commentary).

provisions of Section 10 of this book will probably be of
interest to foreigners as it provides for foreign commercial
firms and companies carrying on their business in Belgium.
Article 128 provides that such companies and firms may
carry on their business and bring and defend suits in
Belgium ; but any foreign company whose principal
establishment is in Belgium becomes subject to Belgian
Law, although it may have been constituted or registered
in a foreign country. The Articles relative to the pub-
lication of documents and balance sheets relating to
the company, and which are dealt with more particu-
larly in Article 66, apply as well to foreign com-
panies which have a branch in Belgium as to Belgian
companies, and the persons who are appointed for the
management of the Belgian branch are responsible towards
third persons to the same extent as they would be if they
were managing a Belgian company. There are nine
more Articles dealing with matters affecting companies,
viz., 131 — 139, but their provisions do not seem to call
for particular attention in these observations, and the
reader is referred to them under their respective numbers
at the end of the book, and should he desire to ascertain
what personal liability arises from an infraction of the
law with regard to companies, he is referred more
particularly to Articles 131 — 135 dealing with the
subject.



CHAPTER XVIIL
Contracts of Insurance.

Titles 10 and 11 deal with contracts relating to contracts
of insurance in general, whilst Title 7, Book 2, including
Articles 168 — 227, deals with contracts of marine insurance.
As to the former, the present law is to be found in the
statutory enactment of June 11th, 1874, containing forty-
three Articles, and so far as the latter is concerned it is to
be found in Articles 168 — 227 of the Law of 21st August,
1879. The contract of insurance is described as one where-
by the assurer undertakes in consideration of a premium to



Digitized by



Google



As TO Contracts of Insurance. 143

indemnify the assured against loss or damage which may
be snstained by the latter as the result of circumstances
which are fortuitous in their nature or which arise
from vis major. An anticipated profit or benefit in
the cases provided for by law may also be insured. Thi&
provision has relation to contracts of marine insurance,
more particularly those which are dealt with in Article 168-
of the Law of 2 1st August, 1879, referred to later on
under the description of *' profits hoped for arising from
the sale of goods." Any person having an interest in the
preservation of a particular article or thing has, by reason
of his right of property or by reason of a liability which
he has incurred in regard to it, an insurable interest in
such thing. A creditor may, by Article 6, insure the
solvency of his debtor, and persons who have a mortgage
or charge upon property, or with whom property has been
pledged as security for a debt, have likewise an insurable
interest therein to the extent of their debt so far as the
value of the property or thing pledged or mortgaged ta
them extends, that is to say, provided the mortgaged or
pledged property is destroyed and was of less value than
the amount of the debt which it purported to secure, the
mortgagee or pledgee can only recover from the persons
entering into the contract of insurance with him the actual
value of the security, and cannot recover any excess of the
amount of the debt beyond such security. Article i* provide*
that every suppressio veri and every suggestio falsi for which
the assured is responsible, even although the same may not
arise from mala fides^ renders the contract of insurance
null and void provided that such circumstance, had it been
known, would have caused the person entering into the
contract of insurance to regard the risk as greater. This
Article is an extension of the terms of Article 1109 of
the Civil Code, which provides that parties entering into a
contract shall not be taken to have validly consented
thereto if their consent has been obtained under a mis-
taken belief as to the facts, or if the same has been
obtained under duress or by fraud. If a contract of
insurance is avoided either wholly or in part in cases where
the assured has not been guilty of bad faith the assurer is
bound to return such portion of the premium as represents
the part of the risk which was never really covered.
Should the contract, however, be avoided on . the ground



Digitized by



Google



144 Code of Commerce (Commentary).

of fraud or as the result of bad faith on the part of the
assured, the assurer is entitled to retain the premium
without prejudice to any other right of action against the
assured which may be vested in him. Article 12 pro-
vides that double insurances on the same risk are not
allowed ; but provided a number of insurances are
effected upon one object the different insurers inter se are
liable for their proportion of the sura represented by the
risk, that is to say, as between the different assurers there
is a right of contribution for their respective proportions.
Article 16 makes provision for the case where an accident
causing the contract of insurance to become operative has
been caused owing to gross negligence on the part of the
assured, and it has the effect of discharging the assurer
from any claim under the policy and entitlesnim to retain
the premium. Under every contract of insurance the
assured must with all possible despatch do all in his power
to minimise the damage, and so soon as the damage arises
he is bound to give the assurer notice thereof under
penalty of being liable in damages should he fail so to do.
Any expenses which he incurs towards this end he is
entitled to charge against the assurers, even although by
so doing he increases the amount which will ultimately
be payable under the contract of insurance, provided
nevertheless that the court or, if the matter is the subject
of arbitration, the arbitrators may either reduce or refuse
to allow such expenses if they come to the conclusion that
the same have been in whole or in part unnecessarily
incurred. Damage arising from any inherent and non-
apparent vice in the thing assured does not render the
assurer liable to the assured in the absence of provision to
the contrary in the contract of insurance. War risks and
those arising from riot are not covered by policies of
insurance unless they are specially mentioned. The value
of the thing insured for the purpose of ascertaining the
liability of the assurer shall be taken as at the time when
the expenditure in respect of which the claim is made
happens ; but should the value have been fixed as a pre-
liminary to the contract of insurance being entered into,
by experts agreed upon between the parties, the assurer
shall not be at liberty to go behind this valuation except
in case of fraud. An assurer who has made good the
damage to the thing assured stands with regard to that



Digitized by



Google



As TO Contracts of- Insurance. 145

thing in the same position as the assured did so far as any
right to indemnity against third parties is concerned, and
the assured is liable to the assurer for any acts done by him
which may prejudice these rights. The meaning of this
is that, assuming for the sake of argument that the
accident caused by the negligence or the criminal or other
improper act of a third party, gives rise to the claim that
the assurer who has -paid the claim has all the assured's
rights against such third party to recover the damages
which the assured would have been entitled to recover, and
would have had to avail himself of to obtain compensation
bnt for the contract of insurance ; and should the assured
in any way prejudice these rights by either dealing with a
third person in the way of discharging him or by doing
anything which would prejudice rights against such third
persons, then, in so far as his action militates against the
rights of the assurer, the assured is liable to reimburse the
assurer to the extent of such prejudice. The assurer,
by Article 23, is also given a lien upon the thing assured,
and such lien is not liable, as are other liens, to the pro-
visions of the law as to registration, and it ranks immedi-
ately after any judicial expenses which may be payable
thereout. By Article 24 the assurer is given the right to
re-insure his risk. Article 25 requires that the contract
of insurance must be in writing, whatever the value of the
thing insured is, provided nevertheless that verbal proof
may be made of the contract, and there is something
in writing which tends to show that a contract of insurance
has, in fact, been negotiated. A policy of insurance must
contain : (1) The date on which the same is entered into.
(2) The name of the person eflfecting the contract of
insurance, and whether it is entered into on his own
behalf or on that of some other person. (3) The risks
which the assurer takes upon himself and the conditions
on which such risks commence to run and cease. Con-
tracts qf insurance are void if the thing insured was not
subject to the risk, or if the danger insured against was
already past at the time when the contract was entered
into. Should the assurer become insolvent whilst his risk
is mnning, the assured is entitled to claim that security
shall be given by him for the performance of his contraiCt,
and failing the giving of this security the rescission of the
contract may be claimed, and the assurer is given the same
rights in the case of the assured's insolvency. Should the

C.P. L



Digitized by



Google



146 Code of Commerce (Commenta^ry).

property insured be sold, assigned, or transferred during
the time that the contract of insurance is running, such
contract, in spite of the fact that it is entered into in
the name o£ the original owner of the thing, enures
for the benefit of the purchaser, transferee, or assignee,
thus the contract attaches to the thing assured itself and
all the rights under it pass with the property in the thing
to the new owner ; this, of course, unless there is pro-
vision in the policy to the contrary. The contract also
becomes void snonld the assured so alter the nature of the
thing assured as to put it into a condition in which,
had it existed at the time when the contract was nego-
tiated, the assurer would have refused to enter into the
contract by reason of the risk being different. Article 32
provides that the rights of action arising under policies^
of insurance are statute barred after three years dating
from the happening of the event giving rise to the claim
under the policy.

The provisions of the law with regard to insurances
against fire risks are to be found in Articles 33 — 38, and
the first of these Articles provides that fire risks include
all damage arising to the articles assured as the result of
the fire, and the policy also covers damage which may
arise to neighbouring premises by reason thereof, unless
the same is brought about by gross negligence or some
wilful act attributable personally to the assured, and it
also extends to damage which may arise to neighbouring
premises by reason of water or other means used for the
purpose of extinguishing the same. Loss or damage arising
during the salvage proceedings and damage to the house
in which goods insured are stored, should the same have
been necessarily caused for the purpose of preventing the
fire from spreading, as well as damage caused by lightning,
explosions, or other similar causes giving rise to fire, are
also included in the fire risk. The provisions of Article 18
above are not applicable to any inherent vice which may
exist in the buildings insured against fire, unless it be
proved that the assured had knowledge thereof at the time
the contract-was entered into. The method of arriving at
the amount to be paid under a contract for the insurance
of house property or buildings of any kind against fire is
to be ascertained by a valuation being made of the pro-
perty as it existed before the fire, and as it existed
afterwards, and the difference between these two valuations



Digitized by



Google



As TO Contracts of Insubancb. 147

IS the extent of liability. The damage is to be paid for
in money unless the policy provides for the assurers
having the right to re-instate and make good the damage.
In the former case, the assured must either repair or
rebuild at the expense of the assurers within a time which,
if necessary, is to be determined by the judge, and the
assurer has a right to see that the sums of money which
he is called upon to pay are actually used for the purpose
of re-instatement or repair. Should a tenant of premises
have insured his rent, if such premises are destroyed by
fire the sum payable to the tenant under his policy, so far
as the rent due daring the time that the premises are not
capable of occupation is concerned, is to be paid to the
landlord direct to the exclusion of the creditors of the
assured, and also should the policy cover claims of neigh-
bouring owners of property so far as the claims of these
owners are concerned, tney are given the same preferential
right to receive payment of the amount of damage which
they have sustained in priority to the tenant and adjoining
owner and to their creditors. This is, of course, without
prejudice to the rights of such landlord and neighbouring
owners should the amount payable under the policy be
insufficient to cover the whole of the damage. The next
Articles (39, 40) deal with the subject of the insurance of
growing crops, and the amount payable under such
policies is made to depend upon the value which the crops
would have had at the time when they came to maturity,
or the price which they would have realised but for their
being destroyed by fire. A farmer, however, who has
received payment from an assurer shall not by reason of
the happening of the fire be at liberty to claim any reduc-
tion in nis rent by reason of the provisions of Article 1769
of the Civil Code, except to the extent of the premiums
which he has paid for the purpose of effecting such
insurance.

The subject of life insurance is dealt with in Articles
41 — 43 of the same law which provide that persons
may effect policies of insurance upon their own or
upon other persons' lives, and the amount payable at
death is to be definitely stated. In the case, however, of
an insurance effected upon the life of another person
it is provided that if the insurer had no insurable
interest therein the policy is absolutely void. Policies of
life insurance become inoperative where the death results

L 2



Digitized by



Google



148 Code of Commebce (Commentary).

either from a judicial decree, from a duel, or from suicide,
unless in the last case it is proved that the same was not
voluntary, that is to say, that the suicide was not compos
mentis at the time of taking his own life, or when the same
has been immediately and directly brought about by crime
or misdemeanour committed by the assured, the result of
which he ought to have anticipated. In cases where the
contract is avoided, for the reason set out above, the assurer
is entitled to retain the premiums unless provision to the
contrary is made by the policy. Life policies are transfer-
able by writing under the hands of the assured, the assurer,
and the transferee. This is a provision of which particular
note should be taken, as it will be noticed that the con-
ditions of it, in that it requires the document of assignment
to be signed by all three parties, creates a very great
difference between the methods in which a Belgian and an
English policy of life insurance can be transferred. The
insurance money payable by the policy upon the death of
the assured belongs to such person as may be nominated
for the purpose by the policy, without prejudice however
to the rules of civil law relative to the return of money
and the reduction of payments made by the assured. These

f revisions are to be found in Articles 843 and 920 of the
Divil Code, and the first of them provides that every heir,
even although taking as a beneficiary a share in a succes-
sion, must repay to his co-heirs all sums which he has
received from the deceased by gifts inter vivos, either
directly or indirectly ; he is not at liberty to retain gifts
or legacies made or given to him by the deceased, unless
such gifts or legacies have been made or given to him free
of this liabiUty, and the latter provides that any such
arrangements made either inter vivos or by reason of death
{donationes mortis causa), which exceed the proportion of
the assets of the deceased over which he has a power of
disposal, shall be reduced to this proportion at the time
of the opening of the succession.

The next subject under the head of insurance to be dealt
with is that of maritime insurance contained, as above
stated, in Articles 168 — 226 of the Law of 21st August,
1879, dealing with the subject of maritime commerce.
The first of these Articles (No. 168) provides that a contract
of maritime insurance may be effected for the purpose of
covering the following, viz., the hull and the keel of the
vessel, the rigging and tackle, the fittings, apparel and



Digitized by



Google



.As TO Contracts of Insurance. 149



Online LibraryTodd BelgiumA treatise on Belgian law: containing a complete translation of the entire ... → online text (page 15 of 64)