Joint liability under Dutch law

If two or more parties undertake to perform the same obligation, under Dutch law these parties will be bound for equal parts of such obligation (unless they must be considered by law, custom or contract to be bound for equal parts or each for the whole of the obligation). Article 6:6 of the Dutch Civil Code (Burgerlijk Wetboek) provides:

1. If a performance is indebted by two or more debtors jointly, then each of them is liable for an equal part, unless it would result from law, common practice or a juridical act that they are liable for unequal parts or that they are jointly and severally liable.
2. If the performance is undividable, or if it would result from law, common practice or a legal act that the debtors each are liable for the whole debt, then they are jointly and severally liable.
3. It may result from an agreement between the debtor and creditor that, when the obligation passes to two or more legal successors of the debtor, these successors are liable for unequal parts or that they are jointly and severally liable.

If two (or more) parties are bound for the whole of the obligation, they are jointly liable co-debtors (hoofdelijke aansprakelijkheid), who are required by law to act towards each other in accordance with the standards of reasonableness and fairness.

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Suretyship as joint liability in the Netherlands

Under Dutch law, suretyship is a form of joint liability, since the surety has undertaken to perform the same obligation as the principal debtor.

Not every form of joint liability is a suretyship under Dutch law. Joint liability can only be regarded as a suretyship if and when the person assuming the liability does so for a debt that does not regard him as such, and therefore it is apparent that he only intends to act in order to provide security to the creditor.

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Jointly liable co-debtor in the Netherlands

If a surety has bound himself as surety and jointly liable debtor, this generally means that the surety has waived his right to invoke the subordination of his liability towards the creditor. This is often the case when a parent company binds itself as a jointly liable co-debtor.

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Frequently asked questions about joint liability under Dutch law

What is joint liability under Dutch law?

Joint liability (hoofdelijke aansprakelijkheid) under Dutch law means that two or more debtors are each liable for the full amount of an obligation. The creditor may claim the entire debt from any one of the co-debtors.

What does Article 6:6 of the Dutch Civil Code say about joint liability?

Article 6:6 of the Burgerlijk Wetboek provides that when two or more debtors owe a performance jointly, each is liable for an equal part unless law, common practice or a juridical act makes them jointly and severally liable for the whole debt.

How does suretyship relate to joint liability in the Netherlands?

Suretyship (borgtocht) is a form of joint liability under Dutch law because the surety undertakes to perform the same obligation as the principal debtor. However, not every form of joint liability qualifies as suretyship.

What happens when a surety binds himself as a jointly liable co-debtor?

When a surety binds himself as a jointly liable co-debtor under Dutch law, this generally means the surety has waived the right to invoke the subordination of his liability towards the creditor. Parent companies often bind themselves this way.

Can joint debtors under Dutch law claim contribution from each other?

Jointly liable co-debtors under Dutch law must act towards each other in accordance with the standards of reasonableness and fairness (redelijkheid en billijkheid). A co-debtor who pays more than his share may seek contribution from the others.