කොන්ත්‍රාත් හවුල්කරුවෙකුගේ බංකොලොත්භාවය: ණයහිමියෙකු ලෙස ඔබේ විකල්ප

When your Dutch contract partner is declared bankrupt, you become a creditor: you can no longer sue the company, but must file your claim with the court-appointed trustee (curator). What you recover depends mainly on rights you secured in advance, such as retention of title, a pledge, a guarantee or a set-off position; ordinary unsecured creditors often receive little or nothing.

What happens the moment your contract partner goes bankrupt?

The company loses control of its assets from the start of the day the court declares the bankruptcy (Article 23 of the Bankruptcy Act, Faillissementswet, Fw). A trustee takes over under the supervision of a supervisory judge (rechter-commissaris).

Promises made by the former management after that moment do not bind the estate. Under Article 33 Fw pending enforcement ends and attachments lapse. Under Article 29 Fw pending proceedings for payment are stayed. Under Article 26 Fw a claim for payment can only be pursued by filing it for verification.

රඟ දැක්වීම නවත්වන්න සහ ගෙවීම නවත්වන්න

Stop delivering and stop paying outstanding invoices to the bankrupt company. Every delivery after the bankruptcy date without an arrangement with the trustee enlarges an unsecured claim, and every payment destroys a set-off position.

The exception: if the trustee asks you to keep supplying, obligations he enters into in that capacity are estate debts (boedelschulden), paid before ordinary creditors. Confirm in writing that you deliver on the trustee’s instruction and account, and agree payment terms first.

Find the trustee and secure your file

Bankruptcies are published in the Central Insolvency Register (Centraal Insolventieregister) of the judiciary and in the trade register of the Chamber of Commerce (KVK). There you find the date of the judgment, the court and the trustee.

Collect your contract, general terms and conditions, order confirmations, delivery notes and correspondence. Two items are critical: proof that your terms were agreed and provided at the time of contracting, and proof of which goods you delivered. Without them, a retention of title claim usually fails.

Which contract clauses actually help you?

Clauses that give you a right in a specific asset, or against a solvent third party, take you out of the queue. A general payment claim puts you behind the tax authorities and secured lenders.

• Retention of title (eigendomsvoorbehoud). Under Article 3:92 of the Dutch Civil Code (BW) ownership of delivered goods passes only on payment, so unpaid goods do not fall into the estate.
• Pledge (pandrecht) or mortgage (hypotheek). Under Article 57 Fw you may enforce as if there were no bankruptcy.
• Guarantee or suretyship (borgtocht). A guarantee from a parent company or director is a contract with a party that is not bankrupt.
• Insolvency termination clause. It lets you end your own obligations, but courts look critically at a clause whose only effect is to favour one creditor at the expense of the estate.

Where do you rank?

Creditors are paid pro rata unless the law gives priority. Your position determines your outlook more than the size of your claim.

Many Dutch bankruptcies are wound up for lack of assets, and ordinary creditors then receive nothing. Our ව්‍යවසායකයින් සහ ණයහිමියන් සඳහා බංකොලොත්භාවය සඳහා මාර්ගෝපදේශය explains the procedure as a whole.

How do you file your claim with the trustee?

You file in writing with the trustee, stating the nature and amount of the claim with supporting documents (Article 110 Fw). In the same filing you state whether you invoke a preference, pledge, mortgage or right of retention.

Include the principal, contractual interest and collection costs, the contract, your general terms with proof they were provided, all unpaid invoices and proof of delivery. If enough assets remain for ordinary creditors, the supervisory judge sets a verification meeting (verificatievergadering). Otherwise the bankruptcy is wound up in simplified form without a meeting.

What happens to a contract that is still running?

Bankruptcy does not end contracts automatically. If neither side has fully performed, you may set the trustee a reasonable written deadline to say whether he will perform (Article 37 Fw).

If he confirms, he must provide security for performance. If he does not respond in time, he loses the right to demand performance from you, and you can claim damages as an ordinary creditor. Special rules apply to leases, which can be ended with a notice period of at most three months (Article 39 Fw), and to employment contracts, which the trustee can end with six weeks’ notice (Article 40 Fw).

What if you disagree with the trustee?

Under Article 69 Fw any creditor can ask the supervisory judge to order the trustee to perform or refrain from a specific act. A disputed claim that the supervisory judge cannot settle is referred to the court in a separate procedure (renvooiprocedure, Article 122 Fw).

Both routes cost time and money. They are usually worth it for a right in an asset, rarely for a modest unsecured claim.

How do you get your goods or money back?

Three mechanisms recover real money: retention of title, set-off and a guarantee. Each must be invoked actively, and the trustee checks the conditions strictly.

මාතෘකාව රඳවා තබා ගැනීම ඉල්ලා සිටීම

Retention of title works only if the clause was validly agreed before delivery, the goods are still present and identifiable, and the invoices for those goods are unpaid. Under Article 3:92(2) BW the clause can only secure the price of goods and related work.

Notify the trustee in writing, list the goods with matching invoices and delivery notes, and offer to attend an inspection. Ownership is often lost when goods are mixed, processed or sold to a buyer in good faith. See our article on නෙදර්ලන්තයේ ශූරතාව රඳවා ගැනීම.

සෙට්-ඕෆ් භාවිතා කිරීම

Under Article 53 Fw a creditor who also owes money to the bankrupt company may set off both, if both arose before the bankruptcy or result from dealings with the debtor before that date. You pay nothing and file only for the balance.

Under Article 54 Fw you cannot set off a claim or debt taken over from a third party in bad faith before the bankruptcy, or any claim taken over after it. That is why you should freeze outgoing payments as soon as you hear of the bankruptcy.

ඇපකරයක් බලාත්මක කිරීම හෝ අධ්‍යක්ෂවරයෙකු වගකිව යුතු බවට පත් කිරීම

A guarantee from a parent company or director is enforced in the ordinary way, outside the bankruptcy. It is the most effective protection you can negotiate for long-term or high-value contracts.

Director liability is harder. Under Article 2:248 BW the claim for manifestly improper management (kennelijk onbehoorlijk bestuur) belongs to the trustee, who must show it was an important cause of the bankruptcy. A creditor can sue a director in tort if the director entered into an obligation knowing the company could not perform it, but must prove what the director knew.

Which mistakes cost creditors the most?

Most losses come from ordinary business reflexes at the wrong moment. Avoid these:

• Continuing to deliver after the bankruptcy date without an arrangement with the trustee.
• Paying an outstanding invoice to the estate, which destroys a set-off position under Article 53 Fw.
• Waiting to invoke retention of title until the stock has been sold.
• Ignoring the risk that the trustee reverses pre-bankruptcy transactions.

Under Article 42 Fw the trustee can annul voluntary acts of the debtor before the bankruptcy that prejudiced creditors, if the debtor knew or should have known this. Under Article 47 Fw even payment of a due debt can be annulled if the recipient knew a bankruptcy petition had been filed, or if the payment resulted from collusion. Keep correspondence showing what you knew and when.

Do not confuse bankruptcy with earlier stages. A struggling partner may offer a court-confirmed restructuring plan (WHOA) or may simply pay late while solvent. For unpaid invoices before insolvency, see our නෙදර්ලන්තයේ ණය එකතු කිරීමේ මාර්ගෝපදේශය.

ඒකට කොච්චර කාලයක් ගතවේවිද?

Expect months, often years. The trustee publishes periodic public reports in the Central Insolvency Register; they are your most reliable source of information.

If assets remain for ordinary creditors, the verification meeting is followed by a distribution list, which is paid out once final. If nothing remains, the court ends the bankruptcy for lack of assets. Assert retention of title in the first days, as goods disappear quickly. Our overview of ලන්දේසි බංකොලොත්භාවය පිළිබඳ නීතිය සහ ලිපිය බංකොලොත් පනත සහ එහි ක්‍රියා පටිපාටි give more background. VAT already paid on an uncollectable invoice can in principle be reclaimed from the Tax Administration (Belastingdienst); we do not give tax advice, so raise this with your tax adviser.

What if the bankruptcy is in another EU country?

The EU Insolvency Regulation applies. Main proceedings are opened in the member state where the debtor has its centre of main interests, normally its registered office, and are recognised automatically in the Netherlands.

The law of that state decides filing rules, deadlines and ranking, so a late foreign filing is not saved by Dutch law. Secondary proceedings may be opened where the debtor has an establishment. Rights in rem over assets located in another member state are in principle not affected, which makes security and retention of title especially valuable across borders.

සැපයුම්කරුවෙකු ලෙස ඔබ පරීක්ෂා කළ යුත්තේ කුමක්ද?

• Stop deliveries unless the trustee confirms in writing that the estate pays.
• Check that your general terms with retention of title were agreed and provided before delivery.
• List the unpaid goods still on the premises with invoices and delivery notes.
• Check whether you owe the bankrupt company anything that you can set off under Article 53 Fw.
• Check for a guarantee from a parent company or director.
• Review recent payments you received for annulment risk under Articles 42 and 47 Fw.

ගනුදෙනුකරුවෙකු ලෙස ඔබ පරීක්ෂා කළ යුත්තේ කුමක්ද?

• Stop paying outstanding invoices until you have assessed set-off.
• Set the trustee a reasonable written deadline under Article 37 Fw to say whether the contract will be performed.
• Check whether prepaid goods or materials can be identified as yours.
• Check your insolvency termination clause and the consequences of using it.
• Arrange an alternative supplier and record your extra costs for a damages claim.

What can we do for you when your contract partner goes bankrupt?

අපගේ බංකොලොත් නීතිඥයින් සහ ආයතනික නීති yers යින් act for suppliers, customers and lenders.

• We review your contract and terms for retention of title, security, guarantees and set-off.
• We draft and file your claim with the trustee, including all rights you invoke.
• We set the trustee a deadline under Article 37 Fw and negotiate continued supply as an estate debt.
• We assert retention of title and attend the inspection of goods.
• We file requests with the supervisory judge and act in a renvooi procedure.
• We draft guarantees, security and payment structures for your next contracts.

සාරාංශය

• From the day of the bankruptcy the company loses control of its assets; you file your claim with the trustee instead of suing.
• Stop delivering and stop paying immediately to protect set-off positions.
• Retention of title, pledge, mortgage and guarantees recover far more than an unsecured claim.
• Set the trustee a deadline under Article 37 Fw for running contracts.
• Recovery is decided when you draft the contract, not at the verification meeting.

නිතර අසන ප්රශ්න