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Liability for claims
Suppose you have been doing business with a company, but the company has not fulfilled its obligations. Perhaps the company has disappeared or become insolvent. How do you ensure that you get paid?
There are various options, depending on the nature of your financial claim:
- Extra 'strong' claims
If you have a right of pledge on a company's plant and machinery for instance, you are in a strong position. This also applies if you have delivered goods and have stipulated a right of retention, or if you have a right to overdue salary and your employer is insolvent. If you suspect that you may have such a preferential entitlement which goes further than just 'getting your money back' it is advisable to consult a legal adviser (for example, a debt collection agency or lawyer). This page will concentrate further on 'ordinary' claims. - Ordinary monetary claims
If we begin with a 'straightforward' claim against a company, the liability of others than the company itself depends upon the legal form of the company. If you do not yet know the legal form of the company, you can find this out by consulting the Dutch language trade register. You can then find out whether the managers or company owner can be held liable. - Claims in the case of insolvency
In the case of insolvency, there is often little chance that an 'ordinary' creditor will ever recover any of the money claimed by him. Nevertheless, it is advisable to notify the trustee of your claim.
Note: if you have a mortgage or pledge upon any property, it does not make any sense to notify the trustee of this claim. You can independently and directly enforce this right. If you notify the trustee of your claim, you lose this right.Claims against a legal entity
At the conclusion of insolvency proceedings there is nothing to be gained from an insolvent legal entity, such as a BV, if the legal entity has ceased to function. The legal entity has ceased to exist. You must therefore commence action before the insolvency proceedings have been completed, either by notifying the trustee of your claim or by commencing proceedings yourself if you have a right of pledge or mortgage over any of the company's assets.Claim against an individual
If you have a claim against any bankrupt individual (a real person rather than a legal entity such as a BV), at the end of the bankruptcy proceedings you can still bring proceedings against this individual to recover any part of your claim still owing. However, the question remains whether there is much point in this. If the debtor has entered into a debt rescheduling arrangement, at the conclusion of this period for repayment there is often no likelihood of recovering any claims still owing.Liability of the business owner
To what extent is the business owner liable for monetary claims? That depends on the legal form of the company.Sole proprietor business
In the case of a sole proprietor business the owner of the business is fully liable for everything that he/she transacts on behalf of the business. Creditors are entitled to claim against the privately owned assets of the business owner. In principle, it is not possible for the business owner to limit his liability. The only possibility is a stipulation in the contract or in the general terms and conditions of the sole proprietorship. Any far reaching limitation or exclusion of liability is, however, not possible.General partnership (VOF)
In the case of a VOF all partners are individually fully liable for the debts of the VOF. They, too, cannot exclude this liability, except as provided for in the contract in question, or in any general terms and conditions. It is up to you whether you claim against just one or more of the partners for the full claim. You do not need to proceed against each individual partner in respect of his notional 'share'.Limited partnership (CV)
The same rules apply to a CV as to a VOF, except that you cannot bring a claim against a limited partner just like that. Such a partner is only liable to the extent of his capital contribution to the partnership. Beyond this the limited partner has no liability. This is different, however, if the limited partner behaves as an ordinary partner, that is to say, he deals with the outside world as an ordinary partner. In that case, the limited partner is liable for all the debts of the limited partnership.BV, NV, foundation, co-operative or mutual benefit company
In the case of a BV, NV, foundation, co-operative or mutual benefit company, you can, in principle, only claim against the legal entity and not against the shareholders or management. Managers can, however, be found liable if they have conducted the management of the business 'manifestly improperly', for example, by the (very) late filing of, or failure to file, annual accounts. This only applies to a foundation if the foundation owns a large company (in excess of 3 million EUR p.a. turnover) and submits assessments for corporate income tax.
If the legal entity is declared insolvent, that means that you only have a small chance of payment. In that event, the trustee can probably give you an indication of how large that chance would be.Association
Have you been dealing with an association? Who you can claim against will depend on the type of association it is:- If the association is not registered in the trade register, you can claim directly against the managers and against the association itself.
- If the association is registered in the trade register, but the articles of association are not contained in any notarial deed, you can only claim against the managers if the association itself offers no further redress.
- If the association is registered in the trade register and articles of association are contained in a notarial deed, the managers cannot be held liable. However, if the association in question is a 'large' one which submits assessments for corporate income tax, then the managers can be held liable for 'manifestly improper management', such as the failure to file annual accounts on time or at all.
