How do you collect a debt in the Netherlands? The following is a step by step plan to recover your debt in Holland, with a number of helpful sample contract clauses and letters to use to collect a debt under Dutch law.
Under Dutch law, the payment term for invoices to businesses is 30 days. Companies may also agree with each other on a shorter or longer payment term (in a specific contract or via general terms and conditions), but that payment term may never exceed 60 days. Dutch public authorities have to pay within 30 days after the day of receipt of the invoice. Under Dutch law, there is no statutory payment term for invoices to consumers. You may therefore determine the payment term for consumers yourself. This must be a reasonable period. A period of 14 days is usually regarded as reasonable in the Netherlands.
Depending on your relationship with the debtor, it is often wise to first make contact with your Dutch debtor by telephone if you have concerns about the payment of an invoice. Another first step could perhaps be unnecessarily aggressive, and could damage the commercial relationship. If your debtor is a Dutch company (and not a consumer), you should preferably call someone who is authorised to represent the company. The trade register kept by the Dutch Chamber of Commerce will show who this is.
You can then inquire whether:
This personal approach to debt collection gives you the opportunity to find out why payments have not yet been made. Try to get the debtor to explicitly promise to pay by when. If, for some reason, this does not work, that is a cause for concern. Condider making good notes of these telephone conversations. Under Dutch law, it is not always permitted to record your own telephone conversations without the prior consent of the other party. However, if you want to use a transcription of the recording (or the audio recording itself) as evidence in legal proceedings later on, the civil court will probably allow this.
A payment reminder is a first formal step in your debt collection process if you still have not received payment within the agreed term. This payment reminder is a friendly reminder that you send a few days after the expiry of the agreed payment term. Mention that in the event of non-payment, you will charge interest on arrears and costs.
If payment has still not been made, the next step in your debt collection is sending a formal demand letter. If the Dutch debtor is a consumer, you are obliged to send a reminder first, free of charge. However, you have already fulfilled this obligation by sending a payment reminder. If the debtor is a company, you are not obliged to do this and you can follow the debt collection procedure described in your general terms and conditions, if any. Such a demand letter should be a formal letter, also called a summons, in which you:
A sample of a reminder letter that complies with Dutch law could be this template:
To date, you have failed to pay the following invoice, for which the payment deadline has now expired:
invoice number [...]
invoice date [...]
due date [...]
invoice amount EUR [...].
You have already been sent a payment reminder for this invoice. Despite this, you have not paid it. Your failure to pay amounts to a breach of contract. We kindly but urgently request you to ensure payment. Your payment should be transferred to our bank account within 14 days after the date of this letter. Payment should be made by transferring the above-mentioned amount (without any deduction, set-off or suspension) to IBAN [...] in the name of [...] at [...], preferably stating the above-mentioned invoice number.
If payment is not made in time and in full, we shall be compelled to pursue legal action and hand over our claim for collection.
In that case, we will also claim the interest due and compensation for the extrajudicial and judicial collection costs. However, we expect that it will not have to come to that and that you will meet your financial obligations after all.
To ensure that you receive this reminder letter, we will send this letter both by post and by e-mail.
If payment has already been made, please consider this letter not sent.
Thank you in advance for your prompt attention to this matter. We look forward to hearing from you. If you have any questions, please do not hesitate to contact us.
When collecting a debt, it sometimes happens that a debtor denies having received the invoice and the reminder letter. Therefore, send the reminder both by post and by e-mail, and keep a copy of the letter. But if you want to be sure that your reminder letter actually arrives (and its receipt cannot be successfully denied by the debtor), you should also send it by courier and ask for an acknowledgement of receipt. This will give you better postion in debt collection proceedings if your debtor denies having received the letter of formal notice.
If the debtor still does not pay your invoice after receiving the reminder (or does not pay it in full or on time), then you are entitled to charge compensation for the collection costs. In addition, you may charge interest for late payment. Collection costs are the costs which you as creditor reasonably incur to obtain your money if the debtor does not pay the invoice of his own accord.
For consumers in the Netherlands, the maximum fee is a certain percentage of the invoiced sum, specified by law. If the debtor is a company, you can deviate from this in an agreement. If you have no agreement, the same rules apply as for consumers.
The interest starts to run on the first day of default (which normally is the day following the last day of the payment term) and can be counted until the day of full payment. If no interest rate has been agreed upon, for example by means of an arrangement in the general terms and conditions, then the statutory interest rate applies. In the case of deliveries to businesses and to the Dutch authorities, the statutory interest rate for commercial transactions shall apply, unless another interest rate has been agreed. Deliveries to consumers are subject to the statutory interest rate for non-commercial transactions (unless another interest rate has been agreed). The statutory interest rate for non-commercial transactions is much lower than that for commercial transactions.
It is not wise to immediately propose a payment arrangement to the debtor. First try to see if your debtor can pay your invoice, with some postponement if necessary. If it turns out that it is impossible for the debtor to pay you within a short period of time, you can agree on a payment schedule. Confirm this arrangement immediately to your debtor and agree that the payment arrangement will expire without further notice or other message from you if the debtor still fails to pay at the agreed times.
A sample of such a payment arrangement could be this template:
On [...] we agreed on a payment schedule concerning invoice [...] in the amount of EUR [...]. I hereby confirm the payment arrangement agreed by us.
As from [...] you will repay the outstanding amount of EUR [...] in [...] instalments:
EUR [...], payable not later than [...]
EUR [...], payable not later than [...]
EUR [...], payable not later than on [...] and
finally the remaining amount of EUR [...], payable not later than on [...].
These instalments must be credited to our bank account with IBAN [...] in the name of [...], stating [...].
If one of the instalments is not paid, not paid in full or not paid on time, this payment arrangement shall immediately lapse, without any notice of default or other communication from our side being required. The amount outstanding at that time shall then become due and payable in full, plus interest and a charge for our legal fees.
We are sending you this letter in duplicate. To confirm and formalise our payment arrangement, please sign one copy of this letter, indicating with your signature the place and date of signature. Please return the signed letter to us. Our payment arrangement will not be effected if we have not received the letter signed for approval by you within one week of its date. In that case, we will be forced to take legal measures to collect the claim, with all the costs that this entails.
We assume, of course, that it will not have to come to that and we look forward to receiving your signed letter as well as your instalment payments under this payment schedule.
This letter is also expressly intended to prevent our claim from being affected by the statute of limitations and should be read as an interruption of the statute of limitations pursuant to Article 3:317, paragraph 1 of the Dutch Civil Code. We will continue to assert our legal claims against you unequivocally and we expressly reserve all rights. You should take into account that we will initiate legal proceedings against you if payment is not made.
If these out of court efforts fail to collect the claim against your Dutch debtor, then consider starting debt collection proceedings in the Netherlands (provided the Dutch courts have jurisdiction).
In order to force a debtor to pay, a creditor needs a judgement. Only with a judgement, the Dutch court bailiff can seize and subsequently sell the assets of the debtor. In order to obtain a judgement, a creditor first has to engage in legal proceedings against the debtor. If and when the Dutch courts have jurisdiction, these proceedings can be quite short if the debtor does not put forward a defence. Such collection proceedings in the Netherlands, in which no defence is put forward against the claims, currently takes about 6-10 weeks. If the debtor does not put forward a defence and does not appear in the collection proceedings, a judgment in absentia will be rendered if all procedural formalities have been complied with. The claims will then be awarded, unless the court deems them unlawful or unfounded. The latter only happens if a serious legal error has been made. However, if a defence is put forward, a collection procedure in the Netherlands may take much longer. The legal proceedings (without an appeal) will take at least nine months to a year. In some courts in the Netherlands, this period can be substantially longer.
If a Dutch court has jurisdiction, the debt collection proceedings are started with a writ of summons, which is served by a Dutch bailiff. This writ of summons states what the creditor is claiming and why this is being claimed. The writ of summons will also refer to certain documents of proof (which shall be attached as exhibits), such as for instance:
The writ of summons also specifies when and where the debtor has to appear in court, and what the debtor's views are on the alleged debt (if this has been made known to the claimant).
If the debtor wants to put up a defence, he can do three things (if litigation is brought before the cantonal court - i.e. if it concerns less than EUR 25,000):
If it is known why the debtor disagrees with the claim, there will be another written round in which you can respond to the debtor's defence or there will be a hearing in which the parties can explain their positions orally. If the claim is less than € 25,000, you can conduct the collection procedure yourself. The subdistrict court is the one that handles the collection procedure and a lawyer is not obligatory at the subdistrict court. You start the collection procedure with a writ of summons which is delivered to the debtor by the court bailiff. You receive the writ back from the bailiff and then send the writ to the court. After you have sent the summons to the court, the court will keep you informed of the progress of the proceedings by means of letters. If you need to do anything yourself (respond in writing or attend a hearing), you will receive a letter from the court about this. When the court has delivered a judgement and your claims have been upheld, you can send the judgement to the bailiff who can use it to force the debtor to pay.
Do you not know how to write a writ of summons or is it a case that has to be dealt with by a court (not the cantonal division of the court), for example because the claim is higher than EUR 25,000? Then it is wise to call in a collection agency, a bailiff or a collection lawyer.
A collection agency can send letters threatening to demand payment, but it has no means of enforcement itself.
Of course, a bailiff can also send demand letters, and start legal proceedings by serving a summons.
A bailiff himself can act in legal proceedings if the case is before a Dutch subdistrict court. This will be the case if the claim does not exceed EUR 25,000 at the time the proceedings are started. This is different, for example, if the claim is based on an employment contract or a rental agreement. In those cases, the bailiff can also litigate about unlimited amounts before the Dutch subdistrict court, which will then have jurisdiction.
A Dutch bailiff can also use coercive measures, such as seizure and public sale of the debtor's goods. For this, however, he usually needs a court ruling first.
A Dutch lawyer can send a demand letters, (if he or she is an advocaat) prepare a writ of summons, ask the court for permission to issue a prejudgment attachment, and litigate before any court in the Netherlands, including in summary proceedings.
Only a Dutch lawyer (advocaat) can litigate for a claimant in the Netherlands if the total claim at the start of the proceedings exceeds EUR 25,000.
A Dutch lawyer (advocaat) can also file for the bankruptcy of a Dutch debtor if several creditors are left unpaid.
If you have delivered goods to a Dutch buyer and the buyer wrongfully fails to pay the purchase price, it is preferable to recover those goods in order to limit your loss as much as possible. This may be possible by invoking retention of title if this has been agreed or by invoking the right of reclamation under Dutch law.
If the contract (usually the general terms and conditions) contains a retention of title, which means that the seller remains the owner of a sold item until the buyer has paid, then the seller can reclaim the sold goods as long as the buyer has not paid.
Retention of title means that ownership of a delivered item is not transferred until consideration has been given. The consideration usually consists of payment of the agreed purchase price. Retention of title is mainly used in purchase agreements for the sale of goods, but can also be applied in an exchange agreement.
In contrast to the right of reclamation, retention of title must be agreed. Indeed, the right of retention of title is not a legal competence, but a contractual competence which must be agreed upon. The retention of title is regulated by law in Article 3:92 of the Civil Code (BW). Article 3:92 paragraph 1 of the Civil Code describes the retention of title as follows:
If the object of an agreement is that one party retains title to an object which is brought under the control of the other party until such time as a performance due from the other party has been completed, that party shall be deemed to undertake to transfer the object to the other party subject to the suspensive condition of completion of that performance.
From the aforementioned legal text from the Dutch Civil Code, it appears that a retention of title is presumed to be a condition precedent. This concerns a legal presumption, because a retention of title can also be designed differently. Based on the main legal rule that the moment of transfer of ownership is suspended, the seller can claim delivery of his goods as long as he is still the owner of the goods. If necessary, the surrender of the goods can be demanded in legal proceedings.
In addition, a prejudgment attachment may be levied for the purpose of surrendering the goods, both in the form of a prejudgment attachment (before you have a judgement) and an enforceable prejudgment attachment (after you have a judgement).
A retention of title offers you strong protection against non-payment, even in the event of the buyer's bankruptcy. After all, as a seller you retain a property right to the delivered goods. You therefore remain the owner until your invoice has been paid.
Although retention of title provides strong protection, you must take into account the obligation to notify the tax authorities if your goods qualify as so-called soil goods. Goods at the bottom are movable items that are located on the bottom of a tax debtor's property and serve to furnish it. Furnishings include all items that serve a somewhat permanent use of the soil, such as inventory or machinery. The duty of disclosure means that you must notify the Tax Authorities in advance that you wish to have your rights to the (soil) goods in question safeguarded.
Retention of title offers wider protection than the right of reclamation, because it can be stipulated both for the purchase price and for additional claims.
Under Dutch law a retention of title can only be stipulated for claims related to the delivery of goods, namely for:
It is advisable to stipulate your retention of title for all the claims mentioned above. So both for the payment of the purchase price and the costs of additional work, as well as for any claims against the buyer due to non-compliance with his obligations. Article 3:92 paragraph 2 of the Dutch Civil Code defines it as follows:
A retention of title can only be validly stipulated with regard to claims concerning the consideration for goods delivered or to be delivered by the transferor to the transferee pursuant to a contract, or activities also performed or to be performed for the benefit of the transferee pursuant to such a contract, as well as with regard to claims on account of failure to perform such contracts. Insofar as a condition is null and void on this ground, it shall be deemed unwritten.
The last sentence shows that a retention of title clause cannot be stipulated for claims other than those specified in this section of the law. A clause with a broader formulation is void if it goes too far. A retention of title clause, for whatever reason, is therefore too broadly formulated and only applies to the claims as mentioned above.
However, it is possible to extend retention of title to earlier and later agreements. It is therefore not necessary that all goods are delivered on the basis of the same agreement.
If several contracts are concluded, it can be stipulated that the retention of title serves as security for all contracts already concluded and those to be concluded. This applies to all three types of claims mentioned above, i.e. for the purchase price as well as for additional work and any damages.
An example of an extensive retention clause in a contract governed by Dutch law (drafted to safeguard the interests of a seller as much as possible) is the following clause:
1 Notwithstanding delivery of the Goods or any of them and the passing of risk in respect of them to the Buyer, title to the Goods shall not pass from the Seller to the Buyer unless and until the Buyer has paid to the Seller the price of the Goods and any other sums due to the Seller.
2 Pending such payment and passing of title, it is hereby agreed and acknowledged as follows:
2.1 the Buyer shall hold the Goods as bailee on behalf of and to the order of the Seller and shall accept delivery and be in possession of them only in such capacity and on and subject to the terms and conditions herein contained;
2.2 the Buyer shall take reasonable care of the Goods, including the insurance thereof against all usual risks with an insurance company approved by the Seller for the full replacement value thereof (and the Buyer shall procure that the interest of the Seller is noted upon any policy of insurance in respect of goods supplied by the Seller and produce a copy of such policy and endorsement on demand), and the Buyer shall be solely accountable to the Seller for any loss or damage suffered in respect of them whilst the same are in his possession or under his control;
2.3 the Buyer shall at all times store the Goods in such a manner so that identification of them both generally and by reference to invoices in respect thereof, shall be uitvoerbaar zonder onredelijke kosten of inspanning;
2.4 the Buyer is authorised to sell on the Goods at a price which shall be no less than the price payable by the Buyer to the Seller;
2.5 the Buyer shall hold the proceeds of any re-sale of the Goods on behalf of the Seller and not pay the same into any overdrawn bank account and retain such proceeds separately and shall account to the Seller therefor;
2.6 the Buyer shall record each sub-purchaser of the Goods (including name, address, other contact details and date and price of each delivery) and shall if the Seller so requests assign in writing such claims as the Buyer may have against any such sub-purchaser in respect of such goods or non- payment therefor.
3 The Buyer hereby grants an irrevocable right and licence to the Seller to enter upon all or any part of the Buyers premises with or without vehicles during normal business hours for the purpose of inspecting and/or repossessing goods to which it has retained title. This right and licence shall continue to subsist notwithstanding the termination for any reason of any contract which is subject to these conditions and is without prejudice to any accrued rights of the Seller under such contracts or otherwise.
4 Not withstanding the provisions of this retention of title clause the Seller shall be entitled to bring an action against the Buyer for the price of the goods in the event of non-payment by the Buyer by the due date even though property in the goods has not passed to the Buyer and/or shall have the right by notice to the Buyer at any time after delivery to pass property in the goods to the Buyer as from the date of such notice.
5 It is declared, for the avoidance of doubt and without prejudice to the generality of the foregoing, that the Company may recover any Goods not paid for and payment shall become due if:
5.1 the Buyer applies for a payment moratorium (in Dutch: surceance van betaling) or for bankruptcy; and/or
5.2 any sum owed by the Buyer to the Seller (whether in respect of the Goods or otherwise) is not paid to the Seller by the date when it is due; and/or
5.3 the Buyer commits a breach of any contract with the Seller.
Under Dutch law, the right of reclamation is based on a legal provision that allows you to reclaim delivered goods if the debtor does not pay. This is also possible in case of suspension of payments (surseance) or bankruptcy. Article 7:39 of the Dutch Civil Code reads:
The seller of a movable object delivered to the buyer which is not registered property may, if the price has not been paid and the requirements for dissolution as referred to in Section 265 of Book 6 have been met in connection with it, reclaim the object by means of a written statement addressed to the buyer. This declaration shall dissolve the purchase and terminate the right of the buyer or his assignee [...].
The right of reclamation is stipulated in the Dutch Civil Code therefore does not have to be agreed upon, and applies when Dutch law applies. The right of reclamation can therefore be used when no (legally valid) retention of title has been agreed upon. Revocation of the right of reclamation by the unpaid seller is, as is evident from the above quoted article of Dutch law, effected by means of a written statement to the non-paying buyer.
Invoking the right of reclamation in this way also leads to the dissolution of the purchase agreement, but this also means that the buyer's right of ownership lapses. The purchase is considered cancelled as soon as the purchaser receives the written statement. As a result, the seller regains ownership of the delivered goods.
The right of reclamation can be used both for the purchase and exchange of movable property, but not for registered property, such as ships or aircraft.
Unlike normal dissolution under Dutch law, in the case of the right of reclamation the buyer's right of ownership lapses. Ownership reverts to the seller. Although there is no retroactive effect, there is a so-called effect on property.
Under Dutch law, the buyer against whom the right of reclamation is exercised is obliged to return the item still in his possession to the seller. If the buyer refuses to do so, the seller can claim revindication in a court of law. In addition, at the request of the seller, the goods can be attached for revindication, both for conservatory arrest (before a judgement has been pronounced) and for enforceable arrest (after a judgement has been pronounced).
A difference between the right of reclamation and retention of title is that the right of reclamation can be invoked if the purchase price has not been paid, whereas the retention of title can also be invoked if additional claims have not been paid, such as the costs of assembly and damages.
When the right of reclamation is invoked, the contract is dissolved and the right of ownership of the buyer lapses. If retention of title has been agreed, ownership of the goods only passes to the buyer after payment. Therefore, the retention of title is a condition precedent to the transfer of ownership.
Unlike the right of retention of title, in the case of the right of reclamation it is not possible to claim compensation for your entire loss. Thus, compensation cannot be claimed for:
Under Dutch law, the right of reclamation can only be invoked when the claim against the buyer is due and payable, so usually only when the payment period has expired.
The right of reclamation must then be invoked within 6 weeks after the payment deadline has expired, or within 60 days after the buyer has received the goods and they have been stored.
If the right of reclamation is not invoked within one of these two periods, the right lapses and the seller can no longer invoke it. The right of reclamation shall only lapse when both periods have expired.
Under Dutch law, the right of reclamation can also be used in bankruptcy of the Dutch debtor, thus protecting the seller also in case of bankrupt buyers. The advantage of this is that, in the event of bankruptcy, you do not just have an unsecured claim on the estate, but you can reclaim the goods delivered. You can thus prevent your unpaid goods from falling into the bankruptcy estate. In the event of the buyer's bankruptcy, the written statement must be addressed to the bankruptcy trustee. Under Dutch law, the seller must allow the receiver a reasonable period of time to pay the purchase price or provide security for this. A period of 14 days is usually regarded as reasonable.
The following example of a letter could be used by an unpaid seller to invoke the retention of title and reclaim the unpaid goods, if the buyer of unpaid goods has been declared bankrupt. Please note: under Dutch law the letter should be addressed to the court-appointed receiver (in Dutch: curator), who is also an attorney in the Netherlands:
According to our information, you have been appointed trustee in the bankruptcy of [...]. We hereby inform you that we have a claim on the bankrupt company of EUR [...], plus interest and costs, on account of our supplies remaining unpaid. A copy of the unpaid invoices is enclosed with this letter.
It follows from our general terms and conditions applicable to these deliveries that we reserve title to all delivered goods. You will also find a copy of these general terms and conditions attached to this letter.
The goods delivered by us to the bankruptcy can be specified as follows and can be recognised by the following article numbers and [...] codes:
We hereby invoke our retention of title and request that you give us the opportunity to exercise our title to these goods as soon as possible.
Apart from this, we hereby also invoke our statutory right of reclamation with regard to these goods.
We ask you to take sufficient measures immediately so that our right of ownership is guaranteed and we can have the goods collected at short notice.
We look forward to your written confirmation that (i) you have received this letter and (ii) you acknowledge our retention of title (c.q. our right to complain) and (iii) will consequently comply with our requests to secure our right of ownership to the goods and (iv) make them available to us.
We look forward to receiving your message within seven days of the date of this letter.
Invoiced claims have a limitation period. This means that if the statutory limitation period has expired, the debtor can no longer be forced to pay the invoice by legal means. In the case of the sale of products to consumers, the invoice is statute-barred after two years if Dutch law applies. And, for instance, in the case of the sale of services to consumers, the limitation period under Dutch law is five years. In the case of business customers, the invoiced claim lapses five years after the expiry of the payment period or the date of acknowledgement of the debt.
But, if you remind the debtor in writing before the end of the limitation period that an invoice is due and if you also reserve the right to collect it in no uncertain terms, the limitation period starts again under Dutch law. In a judgment of 18 September 2015, the highest court in the Netherlands (the Supreme Court) indicated which requirements a written communication must meet to be a valid letter of interruption under Dutch law (within the meaning of Article 3:317 of the Dutch Civil Code). In earlier case law the Supreme Court already ruled that such a written communication must be a sufficiently clear warning to the debtor. The warned debtor must get a sufficiently clear warning from the creditor that he (the debotor) should still retain the relevant data and documentary evidence, even after the initial period of limitation has expired, so that he can properly defend himself against a claim that may still be filed in due course by the creditor.
According to the Supreme Court of the Netherlands, when assessing whether such a notice meets the requirements set in article 3:317 (1) of the Dutch Civil Code:
In this assessment, the other correspondence between the parties can, under circumstances, also be of significance, according to the Supreme Court.
So, how does a creditor interrupt the limitation period of a cause of action under Dutch law?
It is advisable to close all summonses, demand letters or other correspondence about an unpaid claim with the following warning to the debtor:
This notice is also expressly intended to prevent the aforementioned claim from being affected by the statute of limitations and should also be read as an unequivocal interruption of the statute of limitations pursuant to article 3:317 (1) of the Dutch Civil Code.
We will continue to pursue our right to payment and our other legal claims against you unequivocally and we expressly reserve all rights in this regard.
You should also bear in mind that we will initiate legal proceedings against you to collect all of our claims.
If you send an invoice to debtors, you must in certain cases declare and pay VAT on it. You can reclaim this VAT as soon as it is certain that your debt is (partly) irrecoverable.
In Dutch law, the claim is in any case considered irrecoverable at the latest one year after the final payment date you agreed with your client. If no payment term has been agreed, then under Dutch law the statutory payment term of 30 days after the receipt of the invoice applies.
Dutch taxpayers process the VAT amount that they want to reclaim in their tax return for the period in which the 1-year term has expired or in which it has become clear that the invoice is irrecoverable.
Does your Dutch debtor still not pay your invoice despite all your collection efforts? Then you can consider filing for bankruptcy of the Dutch debtor. You can apply for a debtor's bankruptcy if he:
You will need a lawyer (a Dutch: advocaat) to petition the court for your debtor's bankruptcy. You as a debtor will need to be present during the court session. The judge will decide whether or not your debtor will be declared bankrupt. If the debtor has already been declared bankrupt, submit your claim as soon as possible to the court-appointed receiver (curator).