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Transferring claims under Dutch law: a short wrap up

30 March 2020
Banking & Finance

The transfer (overdracht), also known as an assignment (cessie), of a claim is the transfer of a claim from one party (the creditor) against another party (the debtor) to another party (the third party). In what manner should an assignment of a claim that a creditor has on a debtor to a third party be concluded?

An assignment can be concluded by execution of a notarial deed (notariële akte) by a civil-law notary or by entering into a private deed (onderhandse akte) which private deed must be registered with the Dutch Tax Authorities. In each case, it is not required for the debtor to be a party thereto. An assignment can also be concluded by means of a private deed between the creditor and the acquiring third party and notification thereof to the debtor. Again, the debtor does not have to be a party to such a private deed. However, if the debtor is a party, a separate notification (see below) will not be required. After all, the debtor is already aware of the assignment given the fact that the debtor countersigned the private deed.

Please note: in all cases, a debtor is only obliged to pay the acquiring third party after notification of the assignment. Only by notifying the debtor, it can be prevented that the debtor can still fulfil its obligations by paying its former creditor. Up to the moment on which the debtor receives notification of the assignment, the debtor will have to be discharged in respect of its payment obligations if the debtor pays its former creditor. After notification, the debtor can only fulfil its payment obligations by paying the acquiring third party of the claim.

In summary: if a creditor wishes to transfer (i.e. assign) a claim against a debtor to a third party, a deed (i.e. a written document signed by both the creditor and the acquiring third party that serves as an instrument to transfer the claim against the debtor to the acquiring third party) must be concluded. That deed must be (i) executed in front of civil-law notary (i.e. passed by a civil-law notary), or (ii) registered with the Tax Authorities or (iii) the transfer pursuant to the private deed must be notified to the debtor for a legally valid delivery (assignment) of the claim. After notification of the assignment, the debtor will only fulfil its payment obligations by paying the acquiring third party.

Should you have any questions in relation to transferring claims or are you considering transferring claims, please feel free to contact Lucas Lustermans (l.lustermans@ploum.nl or +31619850096), Matthijs Bolkenstein (m.bolkenstein@ploum.nl or +31646630866) of Joost Kool (j.kool@ploum.nl or +31610177339).