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Interpretation deed of pledge not required for establishing which receivables have been pledged

04 February 2020
Banking & Finance - Notarial practice - Corporate Law

Supreme Court 22 November 2019, ECLI:NL:HR:2019:1841 (Holding BV/Heijmans Infra BV)

This Supreme Court judgment relates to the question whether a receivable has been pledged by means of an undisclosed pledged without that particular receivable being explicitly mentioned in the deed of pledge.

This case concerns the question whether Holding BV has been granted a legally valid right of pledge on a claim of A BV against (a legal predecessor of) Heijmans Infra BV (Heijmans). Pursuant to a deed of pledge dated 31 December 2010, A BV has committed itself to pledge all receivables against third parties that it has or will have for the benefit of Holding BV. The granting of the right of pledge was effectuated by using a so-called collective deed of pledge (verzamelpandakte). With such a collective deed of pledge, (usually) a bank, on behalf of its borrowers, pledges the receivables of its borrowers for its own benefit on the basis of powers of attorney that the borrowers granted to the bank when entering into the credit agreement or when signing the first deed of pledge. Subsequently, the bank pledges periodically (often daily) on the basis of these powers of attorney all receivables of all its borrowers who have granted such a power of attorney by means of one collective deed of pledge.

The deed concluded between A BV (as pledgor) and Holding BV (as pledgee) stated:

“As security for the payment or return of all that the pledgor may or will owe to the pledgee at any time […], the pledgor pledges to the pledgee its entire business equipment, in the broadest sense […].

The pledgor hereby also undertakes to pledge to the pledgee all receivables that it has or will have against third parties, under or relating to goods supplied, services rendered, funds borrowed, commissions or for whatever reason or on whatever ground, hereinafter referred to as “the receivables”.

The granting of the right of pledge shall be effectuated using formats established for this purpose by the pledgee, or other documents to the satisfaction of the pledgee from which the pledge to the pledgee becomes apparent.”

On 27 January 2014, a supplemental deed of pledge was agreed upon by A BV and Holding BV and was registered with the Dutch tax authorities. This supplemental deed of pledge stated the total outstanding amount of receivables and also included a list of specified receivables.

In these proceedings, Holding BV claims payment of a receivable from Heijmans and thereby argues that A BV has a receivable against Heijmans which receivable has been pledged by A BV to Holding BV. Heijmans disagrees and argues that the receivable was not pledged, since no reference to that particular receivable was made in the list of specified receivables as attached to the supplemental deed of pledge.

Legal analysis

The Court of Appeal rejected the claim of Holding BV, primarily because the receivable of A BV against Heijmans was not included in the list of specified receivables as attached to the supplemental deed of pledge. In addition, the supplemental deed of pledge also did not include any details on the basis of which it could subsequently be established whether the receivable was pledged as no generic or general description of receivables from A BV against Heijmans was included. The fact that A BV and Holding BV intended to pledge A BV’s receivables against Heijmans by means of that supplemental deed of pledge is irrelevant, because the receivables were not included in the list of specified receivables and the supplemental deed of pledge therefore specifically stated which receivables were to be pledged.

In the Supreme Court proceedings, Holding BV argues that the Court of Appeal failed to recognize that the intention of the parties is also relevant for determining the content of the supplemental deed of pledge and whether the receivable has been subjected to an undisclosed right of pledge. In short, Holding BV argues that the so-called Haviltex-criterion should be taken into account. According to Holding BV, this subjective interpretation be taken into account in establishing whether the requirement of determinability is met, i.e. the requirement that the deed of pledge should sufficiently state which receivables are to be pledged.

Conclusion Supreme Court

The Supreme Court does not overrule the judgment of the Court of Appeal. The Supreme Court states the following, in accordance with A-G Rank-Berenschot ECLI:NL:HR:2019:1841 in its opinion and the De Liser de Morsain/Rabo-judgment, ECLI:NL:PHR:2003:AF4602 to which the A-G refers):

“3.2 establishing an undisclosed right of pledge on a receivable is effectuated by means of an authentic or registered private deed, without notifying the debtor of the pledged receivable (section 3:239 paragraph 1 of the Dutch Civil Code). In interpreting the deed of pledge, it depends on the meaning that the parties in the given circumstances could reasonably assign to each other’s statements and conduct and what they could reasonably expect from each other in that regard. A question that should be distinguished and should be assessed independently from such interpretation, is whether the requirement of determinability as set out in section 3:84 paragraph 2 in connection with section 3:98 of the Dutch Civil Code is met at the time of the pledge. According to existing case-law, this requirement of determinability is met if the deed of pledge contains such information so that it can be established (to the extent required, in retrospect) which receivables are pledged.”

The question whether a certain receivable has been pledged should therefore be distinguished from the matter of interpreting the deed of pledge itself. According to the Supreme Court, the Court of Appeal apparently bore in mind the requirement of determinability as referred to above and did not intend to interpret the deed of pledge.

In addition, according to the Supreme Court, the Court of Appeal did not interpret the law incorrectly in respect of the manner in which it assessed whether the requirement of determinability has been met. Although the Court of Appeal, by considering and primarily focusing on the list of specified receivables as attached to the deed of pledge, seems to apply a criterion that is more strict than the criterion mentioned above, the Court of Appeal subsequently considered that the deed of pledge does not contain any information or details that can subsequently be used to establish whether the receivable was pledged. Consequently, the Court of Appeal the correct criterion for its judgment.

In assessing whether the requirement of determinability has been met, the Court of Appeal correctly disregarded the statement that the parties to the deed of pledge intended to pledge the relevant receivable with that deed of pledge. The intention of the parties to the deed of pledge is irrelevant in that regard insofar as that intention cannot be established on the basis of information included in the deed of pledge itself (to the extent required, in retrospect).