Under-pressure bar operators look for help in rent row with AB Inbev

Earlier this month, Walloon economy minister Willy Borsus called on Belgian brewer AB Inbev to make a gesture of support towards operators of its cafes and bars struggling due to the coronavirus pandemic.

The brewing group recently announced that it expects its clients to continue paying rent on premises during this second wave, contrary to its actions during the first wave of the pandemic when it cancelled rent in April and postponed it in May.

A spokeswoman for AB Inbev responded by reaffirming the brewery's position but revealed that the company is considering offering payment plans adapted case-by-case. "We will see how we can help the cafes and bars who contact us to defer payments, under certain conditions," she said, adding that the brewer continues to support clients in other ways, such as the free replacement of expired beers.

For those cafes and bars who find themselves in trouble, a legal precedent may be able to help them. According to Vincent Fays, a lawyer in the Auvelais region office who has dealt with similar cases, a court ruling from November 1996 could allow clients to withhold payment of rent if it “constitutes an insurmountable obstacle to the performance” of the business and that the situation that has caused the rent to be detrimental to operations has arisen through no fault or intervention of the client.

This ruling, however, does not authorize clients to exonerate themselves from paying rent as they see fit. “The decision must be an absolute and insurmountable obstacle for the debtor of the obligation," explains lawyer and certified mediator Séverine Evrard.

The SDI (an inter-professional employers' federation) has also referred to another case in regard to the situation between AB Inbev and its clients. According to SDI, a café or bar operator may invoke the government-ordered closure obligation as a case of force majeure that exempts them from paying rent (if the operator does not offer services such as takeaways).

On its website, the law firm Matray, Matray and Hallet explains that the situation is probably more complicated than it already seems: "The obligation to pay is a sum obligation,” the statement on their website reads. “However, under Belgian law, this obligation cannot in principle be affected by a case of force majeure." According to the law firm, "the Court of Annulment requires the debtor at the very least to prove that he has made every effort to avoid the impossibility of payment."

It is therefore recommended that individuals in such cases attempt to find an amicable solution before taking any legal action.