May a judge requalify a software renting agreement as a license?

A company enters into a renting agreement for a software package, becomes dissatisfied with its operation, and wants to get out from under the contract by arguing that it is in reality a mere software license. May the court then requalify? In a Feb. 25, 2026 ruling, the Antwerp Court of Appeal ruled no: the renting agreement stood. This is a striking outcome, because in an earlier ruling we discussed last year the same court did proceed with requalification. The difference is in the actual completion of the renting model.

The facts

A private company signed a renting agreement for a software accounting package with Grenke Lease on Feb. 9, 2021. The term was 84 months, at a monthly rent of 121.50 euros. The vendor-supplier purchased the package from a third party, and the renter in turn paid that invoice. The software was delivered and installed on March 9, 2021, and the lessee signed a delivery confirmation.

Soon complaints arose about defects and missing features. The lessee first extrajudicially terminated the purchase agreement between supplier and lessor, and stopped payments to the lessor the following year. The latter in turn terminated the renting agreement and claimed the outstanding invoices plus a cancellation fee of 8,748 euros.

At first instance, the court characterized the agreement between lessor and lessee as a software license agreement and dismissed all of interest giver's claims. The court of appeal reformed that decision.

The decision

The court tested three distinct questions: the qualification of the contract, the merits of the main claims against the renter, and the validity of the severance clause in light of the B2B unfair clauses regime.

Qualification: renting remains renting

The court recalled the principle that the court is bound by the qualification given to their contract by the parties themselves, unless that qualification is irreconcilable with its terms. That principle is now codified in Art. 5.68 Civil Code (CC). The agreement was expressly titled as “classic renting” and contained all the typical elements: a renter-financier, a supplier delivering the package according to the renter's specifications, a purchase by the renter, and a periodic rent.

The decisive factor was that the lessor had actually purchased the software from the supplier (invoice of 13,653.26 euros) and had it delivered and installed at the renter's premises. Moreover, the renter had confirmed the delivery himself. The fact that the lessor could only pass on a sublicense from an intellectual property point of view did not alter this according to the court: license agreement and delivery agreement are two separate agreements that together constitute the renting operation.

Principal claims against renter founded

The renter could not invoke the software's defects against the lessor. A standard clause in the general renting conditions transferred all indemnification rights with respect to the lease object to the lessee, who must exercise them directly against the supplier. Moreover, the court ruled that the renter had not sufficiently demonstrated the defects and that the real reason for termination was a breach of trust with the supplier. The renting company had fulfilled its contractual obligations. It was therefore entitled to terminate the rent at the renter's expense based on the default, and to claim the severance payment.

Severance payment not an illegal term

The renter argued that the severance clause was an illegal clause within the meaning of Articles VI.91/5, 8° and VI.91/6 Code of Economic Law (CEL) (the B2B gray list and its sanction). The court rejected that: a renting agreement is a financing agreement and falls under the broad concept of “financial service” as defined in Art. I.8, 18° CEL (“any service of a banking nature or in the field of credit, insurance, individual pensions, investments and payments”). Art. VI.91/1 CEL excludes financial services from the scope of the B2B regulation. Thus, the clause could be given effect without testing against the gray list, nor, according to the court, was there any reason to mitigate the lump-sum compensation under Art. 1231 old CC.

Legal analysis and interpretation

The factual underpinnings as a tipping point against our previously discussed ruling

In our blog from last year we discussed a ruling of the same Court of Appeal in which the renting agreement for a software platform was indeed requalified as a mere license agreement. The difference between the two rulings is not in the legal standard - it is identical - but in the actual finishing of the renting model.

In the case discussed earlier, the “renting company” had not purchased the software and no material carrier or digital file was provided: the end user received only an access code to a platform that remained the property of the developer. The court then held that the typical three-party structure of renting (purchase by renting company, delivery by or through renting company to renter) had not actually been realized. In the case at hand, all of those elements were present: an invoice in the name of the renting company, a payment, an effective installation and a delivery confirmation signed by the renter.

The lesson is clear: the nature of the contract is not determined by the label, but neither is it determined by the generic nature of the object (“software is immaterial, so it cannot be renting”). The court looks to actual performance and to the actual commitments made by each of the three parties. Those who set up the renting model correctly - with purchase invoice, payment and effective delivery - get legal certainty; those who merely put the three-party structure on paper risk recharacterization.

The broad perimeter of the term “financial service”

Particularly relevant is that the court qualifies the renting agreement as a financial service within the meaning of Art. I.8, 18° CEL, with the result that the entire B2B unfair clauses regime is left out of the picture. The definition of financial service was deliberately kept very broad, and in principle includes any form of lending - including the “disguised” lending embodied in an interest rate transaction.

The flip side of that broad reading is fundamentally not insignificant. B2B protection against abusive terms was introduced in 2019 to protect weaker businesses from unbalanced standard terms. When any financing component is enough to place the entire agreement outside the scope of protection, a large chunk of the market - leasing, renting, all manner of split-payment constructions - escapes any scrutiny. Whether this outcome corresponds to European harmonization logic is debatable, but pro forma the Belgian legal text follows this path. Until a Cassation ruling or a preliminary reference adjusts this picture, the financing party sits comfortably.

Software as two distinct agreements

The court codifies in clear terms that the “purchase” of standard software legally breaks down into a license agreement and a supply agreement. Both agreements may involve different parties and may be contained in the same or separate deeds. That distinction is not academic hair-splitting: it explains why a renting company who does not acquire the licensing rights herself (she only gets a sublicense herself) can still set up a valid renting operation, provided she fulfills the delivery component by payment to the supplier and actual provision to the end user.

This also creates a workable frame of reference for SaaS-like models: once there is no delivery and the funder merely passes on an access code or a subscription, without any purchase of its own, the risk of requalification to a mere license remains very real.

Specifically, what does this mean?

For leasing and finance companies offering software grafting. The ruling is reassuring, but obliges file discipline. Those who remain in standby mode as renting companies - no purchase invoice in their own name, no payment to the supplier, no effective delivery to the end user - risk that a judge will still classify the agreement as a mere (sub)license agreement, with all the liability for defects that follows. Ensure that the three elements in each file are actually traceable (purchase invoice, proof of payment, delivery confirmation). Standard clauses that pass all indemnification rights to the renter remain valid under current case law.

For business owners who sign a renting contract for software. Do not underestimate the legal nature of a renting agreement. You are not entering into a classic rental agreement, but a financing agreement in which your rights vis-à-vis the supplier are contractually transferred to you, and in which the renting company positions itself on its own, long and relatively difficult to dissolve contractual bond. When the software becomes defective, you must respond quickly - not only to the supplier (by filing a timely notice of default and preparing an indemnification claim) but also to the renting company, pursuant to any exception clause included in the general terms and conditions in case the supplier fails to fulfill its warranty obligations. Never stop payments to the renting company without legally substantiating that exception route: one unpaid quarterly installment is usually sufficient to allow the renting company to terminate the contract to your detriment, with a severance payment equal to all remaining rent. Furthermore: mitigation under Art. 5.88 CC (formerly Art. 1231 old CC) seems a way out at first glance, but rarely works in practice - financing agreements are difficult to overturn along that track.

Frequently asked questions (FAQ)

Can a judge simply disregard the name given to their contract by the parties?
Not without reason. In principle, the court is bound by the qualification chosen by the parties themselves. He can only deviate from it if that qualification is irreconcilable with the clauses of the contract or with mandatory rules or rules of public policy. This principle is codified in Article 5.68 CC and also applied under the old law. Thus, the court does not freely weigh between two possible qualifications: the party qualification must be excluded as untenable.

Is a renting contract the same as a lease?
Not quite. Renting and leasing are both financing agreements with a three-party structure (financier, supplier, user), but leasing is traditionally linked to a purchase option at the end of the term, while renting typically does not include that option. In terms of B2B unfair clauses rules, case law treats them similarly: both are considered financial services and escape the application of Article VI.91/1 et seq. CEL.

Do all financing agreements fall outside the B2B protection against illegal terms?
For now, yes, at least along the lines of the Antwerp Court of Appeal. Art. VI.91/1 CEL excludes financial services from its scope, and Art. I.8, 18° CEL defines that financial service very broadly as “any service of a banking or credit nature.” Renting, leasing and similar arrangements fall under that broad concept. Whether that reading will hold up in the long run - for example, in the Court of Cassation or in a preliminary question to the Court of Justice - is an open question, but today it is the prevailing position.

Conclusion

A renting contract for software is not automatically a disguised license. Those who actually live up to the renting model - purchase, payment, delivery - have the case law in Belgium behind them; those who use the label without completing the three-party structure risk requalification and liability for defects. Moreover, the fact that the Court of Appeal additionally confirmed that a renting agreement is a financial service places this type of contract outside the B2B unfiar clauses test. For the finance industry, this is good news; for the renter, a warning.