Joint liability - under Dutch law
Joint liability and several liability - in the Netherlands
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 provides:
1. If a performance is indebted by two or more debtors jointly, then each of them is liable for an equal part, unless its would result from law, common practice or a juridical act that they are liable for unequal parts or that they are joint and several liable.
2. If the performance is undividable, or if would results 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, who are required by law to act towards each other in accordance with the standards of reasonableness and fairness.
Suretyship as joint liability in the Netherlands
Under Dutch law, suretyship is a form of joined liability, since the surety has undertaken to perform the same obligation as the principle debtor.
Please note, that not every joined liability is a suretyship under Dutch law. Joined 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.
Jointly liable co-debtor in the Netherlands
If a surety has bound himself as surety and jointly liable debtor, this generally entails that the surety has waived his right to invoke the subordinationof his liability towards the creditor. This is often the case when a parent company binds itself as a jointly liable co-debtor.
