Liability of VvE: Legal Advice for Window Cleaners

Questioner

Can a window cleaner (sole proprietorship from Belgium) hold a VvE liable for the consequences of his accident if he cleans the windows using the classic boatswain's chair method (banned since July 1, 1996)? The window cleaner has agreed to the order from the VvE to clean the windows in this way.

Lawyer

The agreement with the window cleaner is null and void, because it is against the law. The agreement has therefore never legally existed and the window cleaner has therefore not agreed to it. I am of the opinion that the VVE acted unlawfully towards the window cleaner by knowingly and deliberately entering into a void agreement with him. The VVE also allowed the window cleaner to carry out his work in a manner that the VVE knew or should have known was prohibited and did not intervene in this. The VVE thereby created a situation that it knew could be dangerous for the window cleaner. Now that this danger has indeed materialised, the consequence is that the VVE is liable under Article 6:162 BW for the damage that the window cleaner suffered or will suffer as a result of his accident.

Lawyer

I see it a little differently. The agreement is not void, because window cleaning is a permitted activity. At most, the element 'boatswain's chair method' is void: if the window cleaner had wanted to clean the windows in a different way afterwards, that was allowed even if something else had been agreed. Whether the VvE is liable depends on a number of factors. The window cleaner is a professional and is expected to know the rules. The VvE can agree/prescribe the boatswain's chair method, but is not the employer of the window cleaner and is therefore in principle not obliged to ensure a safe working environment. The VvE has also not created a dangerous situation itself; the window cleaner did that himself. How was the agreement on the working method reached? Did the VvE prescribe this method? Did the window cleaner protest against this working method but still forced to work in this way?