Solving debts: the vof (general partnership)
- Sergej Schuurman
- The basis
- 10 May 2023
- Edited 8 Aug 2022
- 2 min
- In trouble
How you solve your debts, depends on your legal structure. This article tells you what to do if you have a vof (general partnership). We start by explaining how liability works in a vof. You do not have to solve your problems alone. The next step tells you who can help you.
Liability for debts
If partners do not make arrangements on liability, all partners are equally liable for all the vof's obligations or debts. It makes no difference which partner has entered into a debt or obligation. The business creditor first makes a claim on the vof's assets. If this is not enough, the creditor may claim the rest of the debt from the private capital and assets of each partner. Not for a part of the debt, but for the entire amount. A private creditor cannot lay claim to the vof's assets.
Liability of your life's partner
Did you marry without a prenuptial agreement? In that case, your partner is also liable for debts. If you draw up a prenuptial agreement and divide the partners' assets, you may limit the risks. But despite prenuptial arrangements, a partner's separate capital may still become party to a bankruptcy. For example, if a house is put in the name of the partner who is not an entrepreneur, and they have an income that is too low to pay the mortgage. The partner's capital may also become part of a bankruptcy if you do not follow the rules of the prenuptial.
Did you have a business before 1 January 2018, and did you marry or enter into a partnership with limited community of property (beperkte gemeenschap van goederen, in Dutch)? In that case, the business is outside your communal property, and your partner is not liable. Are you starting a business while you are married or in a registered partnership with community of property? In that case, the business is inside the communal property, and your partner is liable.
These are the options:
Payment agreement and conferring
Do you owe the government money? See if you can come to a payment agreement. If you cannot pay your taxes, contact the Dutch Tax Administration straightaway. Do you have loans or credits from a bank, other financiers, or suppliers? Confer with your creditors and discuss how to solve your debts.
You can apply for an amicable settlement to your municipality. An amicable settlement means that you look for a way out of your debts with support from municipal debt counselling. For example, by payment agreements, refinancing, or debt mediation. After the settlement trajectory, you will be free of debt.
Natural Persons Debt Restructuring Act (Wsnp)
If the amicable settlement fails, you can appeal to the district court for admission to the Natural Persons Debt Restructuring Act (Wet schuldsanering natuurlijke personen, Wsnp). In most cases, you will have to end your business. After debt restructuring, you will be free of debt.
Homologation private agreement in bankruptcy Act (WHOA)
Is your business in danger of going bankrupt? You can try to avoid bankruptcy using the homologation private agreement in bankruptcy Act (Wet Homologatie Onderhands Akkoord, WHOA). You come to an arrangement with your creditors and have it approved by the court. The WHOA allows you to come to an arrangement even if not all creditors agree.
If you make use of the WHOA, you can apply for a TOA credit of up to 100,000 euros. This is a loan for a restart, expansion, or adjustment of your business.
Are you temporarily unable to pay your debts? You can file for a suspension of payment from the court. You will not have to pay your creditors for a period of time. In most cases, suspension of payment ends in bankruptcy.
If you can no longer come to a payment arrangement with your creditors, the court can declare you bankrupt. The court appoints a curator, who will take over all decisions and money matters. Before the court decides, a petition for bankruptcy must be made. You can do this yourself, but a creditor may also file for bankruptcy.
Note: if a creditor files for your bankruptcy, you may try to avoid it by using the Wsnp or a WHOA agreement. The advantage of the Wsnp and WHOA is that you are free of debt afterwards. If your business goes bankrupt, your debts remain and you remain liable for them.
You do not have to solve your debts on your own. In the next step, we tell you where to turn for help. Use the dealing with debts step-by-step plan.