In certain economic sectors, the possibility of transferring or pledging rights to a contract is generally excluded. The reasons for this are in particular the wish of the debtor not to be confronted with new creditors in connection with the need for an unambiguous payment address. As a result of this practice, receivables and loan portfolios are no longer de facto used as credit coverage. This (business) economic reverse effect is reinforced by the fact that in our neighboring countries the effect of contractual non-transferability and non-pledging clauses has already been limited or abolished. This leads to disruption of the level playing field to the detriment of the Dutch business community.
The aim of this proposal is to put an end to these unwanted contractual practices in a targeted manner. The aim is to achieve a corresponding extension of the credit potential for business. This can prevent unnecessary liquidity problems and free up resources that can be used for growth and employment-enhancing investment and innovation incentives. At the same time, this proposal largely responds to the debtor's interest in clarifying the payment address by introducing a written requirement. The debtor does not have to pay a new creditor until he has been notified in writing of a transfer or pledging of a claim that falls within the scope of this bill.
Article 3:83 paragraph 2 of the Civil Code assumes the primacy of contractual freedom. This proposal makes a limited exception to this for registered monetary claims that have been obtained commercially. The transferability or pledgeability thereof can no longer be excluded by contract. Partial exclusion of transferability or pledging is also no longer possible.
The proposed exception to the current regime of Section 3:83 (2) of the Dutch Civil Code is further specified in three respects.
1. It must be "a monetary claim in name", "arising from the exercise of a profession or business". It must be corporate money claims from companies. Cash claims by private individuals, on the other hand, are outside the scope of this proposal.
2. The bill furthermore only concerns the exclusion of transferability or pawnability. A clause whereby parties exclude the establishment of a usufruct remains therefore possible.
3. Finally, a number of specific monetary claims are excluded from the scope of this bill, so that the current regulation of Section 3:83 (2) of the Dutch Civil Code continues to apply to these claims. The exceptions are included in the new paragraph 4.
• According to new paragraph 4 under a) banks can contractually stipulate that the balance on current and savings accounts - subject to the regular transfer - is not freely transferable or pledgeable.
• Under b) an exception has been included for syndicated loans, in which a consortium of (international) banks acts as lender. Inclusion of the exception ensures that Dutch law complies with what is customary in international trade with regard to these loans.
• Clauses under c) exclude claims by or against a clearing institution, a central counterparty, a settlement agent, a clearing institution or a central bank. For the terms "central counterparty", "resolution", "clearing house" and "central bank", the definitions in Section 212a of the Bankruptcy Act have been used; for the term 'clearing institution', reference is made to the definition in Section 1: 1 of the Financial Supervision Act.
• Finally, under d) an exception is made for monetary claims that will be deposited in an account for the payment of wage tax, turnover tax based on an agreement as referred to in Article 34, third paragraph, 35, fifth paragraph, or 35a (4). of the Recovery Act 1990 and social insurance contributions (so-called G-account). Section 3:83 (3) of the Civil Code itself clarifies that any conflicting clause is void. It also indicates that the new Section 3:83 (3) of the Civil Code is mandatory. If a non-transferability or non-pledging clause is part of a broader contract, the entire contract need not be invalid. Pursuant to Section 3:41 of the Dutch Civil Code, partial nullity may exist.
A new paragraph is added to Section 3:94 of the Dutch Civil Code, which means that the debtor must be notified in writing before the public assignment of the money claims referred to here. As long as the notification referred to here is missing, the debtor can pay to his original creditor in a liberating manner.
Article 85a OnBW provides that the nullity of clauses contrary to the new Article 3:83, third paragraph, second sentence, of the Civil Code applies to new agreements immediately from the entry into force of this law. For existing contracts, this nullity applies from three months after the entry into force of this law and therefore only for the future.
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NAZALI TAX & LEGAL |