د هالنډ د قانون له مخې مالي امنیت: تضمین، تضمین، ګروي او ژمنه

Dutch law offers two kinds of financial security for a creditor: a second party who can be held liable for the debt (joint and several liability, suretyship, a guarantee or a 403 declaration), or a right in a specific asset (a mortgage or a pledge). Asset-based security is usually stronger, because it does not depend on the solvency of another party; the main exception is an abstract bank guarantee, which pays out without regard to defences from the underlying contract.

Without security, you are an unsecured creditor. If the debtor goes bankrupt, your claim competes with all other unsecured claims and is often paid only in part, if at all.

What is joint and several liability?

Joint and several liability (hoofdelijke aansprakelijkheid) means that a creditor can claim the full debt from any one of several co-debtors. Under Article 6:6 of the Dutch Civil Code (BW), co-debtors are each liable for an equal share by default; joint and several liability is the exception and follows from the law or the contract.

Examples are the partners of a general partnership (vof), directors held personally liable for company debts, and co-borrowers under a loan agreement. The co-debtor who pays the full debt can recover the other debtors’ shares from them (Article 6:10 BW). To be released from joint and several liability, for example when you leave the business, you need a written discharge from the creditor; an informal promise by your co-debtors does not bind the creditor.

تاسو کله د خپل میړه رضایت ته اړتیا لرئ؟

Under Article 1:88(1)(c) BW, a married person or registered partner needs the consent of their spouse to bind themselves as surety or joint and several co-debtor outside the normal course of business. Without consent, the spouse can have the commitment annulled.

Article 1:88(5) BW makes an exception for a director who, alone or together with fellow directors, holds the majority of the shares in a BV or NV, if the commitment is made for the normal business of that company. Courts apply this exception restrictively.

What is suretyship (borgtocht)?

Under Article 7:850 BW, suretyship (borgtocht) is an agreement in which a third party, the surety (borg), commits to the creditor to perform an obligation of the principal debtor. The surety pays a debt of another, not its own, and is liable with all of its assets. Suretyship is sometimes translated as “escrow”, but that is incorrect: escrow means money held in deposit by a third party, which is a different arrangement.

Suretyship is accessory: it follows the principal debt and ends when that debt is paid (Article 7:851 BW). The surety can raise the same defences as the principal debtor (Article 7:852 BW). The creditor must first address the principal debtor and put it in default; only when the debtor fails to perform can the creditor claim from the surety (Article 7:855 BW).

A surety who pays takes over the creditor’s claim against the principal debtor by subrogation, and can then recover the amount from the debtor.

Is it a business or a private suretyship?

Under Article 7:857 BW, a private suretyship is one given by a natural person outside the exercise of a profession or business. A suretyship given by a majority shareholder-director for the normal business of the company counts as a business suretyship. A typical private suretyship is a parent who stands surety for a child’s loan.

A private suretyship gets extra protection. It is valid only up to a maximum amount stated in money (Article 7:858 BW), it can be proven only in writing (Article 7:859 BW), and the spouse’s consent under Article 1:88 BW is required. Under Article 7:863 BW, these protective rules also apply when a private person promises a different performance if the debtor fails.

تضمین څه شی دی؟

A guarantee is not regulated by statute but agreed in a contract. The guarantor promises the creditor to pay or perform if the debtor does not. The key question is whether the guarantee is accessory or abstract, because that decides which defences the guarantor has.

An accessory guarantee depends on the relationship between creditor and debtor, much like suretyship, but the guarantor may promise a different performance. An abstract guarantee, such as a bank guarantee, is an independent obligation: once its conditions are met, the guarantor must pay and cannot invoke defences from the underlying contract. The creditor does not first have to put the debtor in default.

A guarantor under an abstract guarantee has no statutory right of recourse. It therefore usually agrees a counter-guarantee or indemnity with the debtor in advance.

د اصلي شرکت تضمین څه شی دی؟

In a parent company guarantee, a parent company undertakes to meet the obligations of a group company if that company does not. Parties decide on scope, duration and conditions: payment only, or also performance, and whether the parent must pay on first demand (“pay first, argue later”) or may first check the claim. Such a guarantee protects the creditor only as long as the parent company itself remains solvent.

What is a 403 declaration?

Under Article 2:403 BW, a group company can be exempted from preparing and publishing its own annual accounts if its parent company declares in writing that it is jointly and severally liable for the debts arising from the subsidiary’s legal acts. The declaration is filed with the trade register of the Chamber of Commerce (KVK), and the subsidiary’s figures are included in the parent’s consolidated accounts.

The 403 declaration is a unilateral legal act and is used by large groups and by small structures alike, such as a holding BV with one operating BV. Unlike the other forms of personal security, it creates liability towards all creditors of the subsidiary, not only one contract party. If a subsidiary covered by a 403 declaration goes bankrupt, its creditors can turn to the parent company.

How do you end liability under a 403 declaration?

The parent company first withdraws the declaration by filing a statement with the trade register (Article 2:404(1) BW). From then on, it is no longer liable for debts from new legal acts of the subsidiary, but it remains liable for debts from legal acts performed before the withdrawal could be invoked against the creditor (Article 2:404(2) BW).

To end that residual liability as well, all conditions of Article 2:404(3) BW must be met: the subsidiary no longer belongs to the group, a notice of the intention has been available for inspection at the trade register for at least two months, at least two months have passed since an announcement in a national newspaper, and no creditor has objected in time, or any objection has been withdrawn or declared unfounded. A creditor who objects can ask for security for its claims (Article 2:404(4) BW).

د ګروي او ګروي ترمنځ څه توپیر دی؟

Both give the creditor a right in a specific asset, which it can sell without a court judgment if the debtor fails to pay. A mortgage (hypotheek) applies to registered property, such as land, buildings, registered ships and aircraft; a pledge (pandrecht) applies to all other property, such as machinery, inventory and receivables (Article 3:227 BW).

A secured creditor may sell the asset and satisfy its claim from the proceeds, but any clause allowing it to keep the asset is void (Article 3:235 BW). In the debtor’s bankruptcy, mortgage and pledge holders can enforce their rights as if there were no bankruptcy, which makes them separatists in Dutch insolvency practice.

How does a mortgage work?

A mortgage is created by a notarial deed that is registered in the public registers of the Land Registry (Kadaster). The secured claim must be sufficiently determinable (Article 3:231 BW). The owner keeps ownership; the bank is the mortgage holder (hypotheekhouder) and the borrower is the mortgagor (hypotheekgever).

If the debtor defaults, the mortgage holder may have the property sold at a public auction before a civil-law notary without a court order (Article 3:268 BW). A private sale is possible only with the approval of the court in preliminary relief proceedings.

Possessory or non-possessory pledge?

A possessory pledge (vuistpand) is created by bringing the asset under the control of the creditor or a third party (Article 3:236 BW). A non-possessory pledge (stil pandrecht) leaves the asset with the debtor and is created by a notarial deed or a registered private deed (Article 3:237 BW). Companies use it for machinery and receivables, because the business can keep operating.

If the debtor defaults, the pledge holder may sell the pledged asset without a court order (Article 3:248 BW). The difference matters in a bankruptcy: the Tax Administration (Belastingdienst) can recover certain tax debts from movable assets on the debtor’s premises that serve as fixtures and fittings (bodemzaken), even if they are subject to a non-possessory pledge. A possessory pledge is not affected by that right.

د پور ورکوونکي په توګه تاسو باید څه وګورئ؟

• Whether the security is accessory or abstract, and which defences the provider can still raise.
• Whether a private surety’s maximum amount is stated in money and the spouse has consented.
• Whether a 403 declaration is still filed for your debtor at the KVK, and since when.
• Whether your mortgage or pledge deed was notarised or registered on time.
• Whether pledged assets on the debtor’s premises are exposed to the Tax Administration’s right of recovery.

What should you check as the provider of security?

• Whether you are a private or a business surety, and whether a maximum amount applies.
• Whether you have a right of recourse, or need a counter-guarantee from the debtor.
• Whether you obtained a written discharge when you left the business or sold the shares.
• Whether a 403 declaration for a sold subsidiary has been withdrawn and the Article 2:404(3) procedure completed.

What can we do for you with financial security?

زموږ د کارپوریټ وکیلانو د تمرین له لارې موږ کولی شو ستاسو سره مرسته وکړو، د مثال په توګه:

• We draft and review suretyships, guarantees and parent company guarantees.
• We advise on the security package for a loan or supply agreement.
• We handle the withdrawal and termination of a 403 declaration under Article 2:404 BW.
• We assess whether a suretyship or guarantee given by you can be annulled or limited.
• We enforce a pledge or mortgage, or defend you against enforcement.

لنډیز

• Personal security (joint and several liability, suretyship, guarantee, 403 declaration) adds a party you can claim from; a mortgage or pledge gives you a right in an asset.
• A surety can raise the debtor’s defences and can only be addressed after the debtor defaults; an abstract guarantee pays without those defences.
• A private suretyship needs a maximum amount (Article 7:858 BW) and, for married persons, the spouse’s consent (Article 1:88 BW).
• A 403 declaration makes the parent liable to all creditors of the subsidiary; ending that liability requires the procedure of Article 2:404 BW.
• A mortgage covers registered property, a pledge almost everything else; both can be enforced without a court order.

ډېرپېښې پوښتنې