Dutch Civil Code

Book 3 Property law in general

Title 3.2 Juridical acts

Article 3:32 Legal capacity to perform juridical acts
- 1. Every natural person has the legal capacity to perform juridical acts as far as the law does not provide otherwise.
- 2. A juridical act of a natural person who misses the legal capacity to perform juridical acts [minors and adults placed under guardianship], is voidable. A one-sided (unilateral) juridical act of such a natural person is, however, null and void when it is not addressed to one or more specific persons.

Article 3:33 Will (intention) expressed through a statement
A juridical act requires the will (intention) of the acting person to establish a specific legal effect, which will (intention) has to be expressed through a statement of the acting person.

Article 3:34 Mental disturbance
- 1. If a person, whose mental capacities have been disturbed temporarily or permanently, has performed a juridical act, then a concordant will (intention) is regarded to be absent if the mental disturbance prevented a reasonable appreciation of the involved interests or if the statement has been made under influence of that mental disturbance. A statement is presumed to have been made under influence of a mental disturbance if the juridical act was disadvantageous for the mentally disturbed person, unless this disadvantage reasonably could not be foreseen at the moment on which the juridical act was performed.
- 2. Such a lack of will (intention) makes the juridical act voidable. However, a one-sided (unilateral) juridical act that is not addressed to one or more specific persons, is null and void when it lacks the will (intention) of the acting person due to a mental disturbance.

Article 3:35 Reasonable assumption of the intention to perform a juridical act
Towards him who has interpreted another person’s statement or behaviour, in accordance with the meaning that he reasonably could give to it in the circumstances, as a statement with a certain content of this other person addressed to him, cannot be appealed to the absence of a with that statement corresponding will (intention).

Article 3:36 Reasonable assumption of a third person of the existence of a legal situation
When a person through his statements or behaviour has created the impression that a certain legal relationship exists or has come to an end, and a third party has legally or physically acted in good faith because he assumed, and in the circumstances reasonably could assume, that this impression, although not directly addressed to him, was correct, then the person whose statements or behaviour it concerns, cannot appeal towards this third party to the incorrectness of his assumption.

Article 3:37 Form and effect of a statement that is recognized as a juridical act
- 1. Unless a statutory provision or a juridical act provides otherwise, statements, including notifications and announcements, may be expressed in any form, and they may even reach expression through the behaviour of a person.
- 2. If an applicable provision indicates that a statement must be made in writing, then this statement may be given also by means of a bailiff's writ, insofar this is in line with the underlying principle of that provision.
- 3. A statement addressed to a specific person must have reached this person in order to have the sought legal effect. Nevertheless, if such a statement has never reached this person or it did not reach him in time and this is merely a result of his own actions or of the actions of other persons for whom he is responsible or the result of other circumstances which justify that he is accountable for any disadvantage caused by it, then this statement will still have its originally intended legal effect.
- 4. When a person’s statement has been transmitted incorrectly because of a fault made by the selected messenger or as a result of an error caused by the chosen means of communication, then the statement, as received by the addressee, will be regarded as the statement of the person who made it, unless this way of transmission was used on instruction of the addressee.
- 5. In order to have the wanted effect, a withdrawal of a statement which has been sent out to a specific person already, must reach this person before or at the same time as the to be withdrawn statement.

Article 3:38 Time stipulations (effective date and expiration date) and conditions subsequent or precedent
- 1. Unless the law or the nature of the involved juridical act implies differently, it is possible to perform a juridical act under an effective date or expiration date (time stipulation) or under a condition subsequent or precedent.
- 2. The fulfilment of a condition subsequent or precedent has no retroactive effect on the juridical act that was performed under this condition.

Article 3:39 Effect when formal requirements for a juridical act are not fulfilled
Unless the law provides otherwise, a juridical act that is not performed in accordance with statutorily formal requirements, is null and void.

Article 3:40 Violation of law (statutes), public morality or public order
- 1. A juridical act that, by its content or necessary implications, violates public morality or public order, is null and void.
- 2. A juridical act that violates a statutory provision of mandatory law is null and void; yet, if this statutory provision merely intends to protect one of the parties to a more-sided (multilateral) juridical act, then such a juridical act is voidable, provided that this is in line with the underlying principle of the violated statutory provision.
- 3. The previous paragraph does not concern statutory provisions that do not purport to make a conflicting juridical act invalid.

Article 3:41 Partial nullity
If a ground for nullity concerns just one part of a juridical act, then the valid part of that act remains in force as an independent juridical act, insofar it is not, in regard of the content and the necessary implications of the originally intended juridical act, indissolubly connected with the invalid part.

Article 3:42 Conversion
When the necessary implications of an invalid juridical act are in conformity with those of another - valid - juridical act and this in such a degree that it is presumable that this other juridical act would have been chosen instead of the invalid one if the acting party or parties would have been aware of the invalidity of the latter act, then this invalid juridical act shall be converted by operation of law into that other valid juridical act with all its normal legal effects, unless such a conversion would be unreasonable towards an interested person who has not participated as a party in the involved juridical act.

Article 3:43 Incompetence to perform acts of law
- 1. Juridical acts which, either directly or through intervention of other persons, have as necessary implication the acquisition:
a. by judges, members of the Public Prosecution Service, court assistants, clerks of the court, solicitors (attorneys), bailiffs or notaries of property regarding to which a lawsuit is pending before the court in the district where they exercise their office or profession;
b. by civil servants of property that is sold by them in the exercise of their public office or that is sold under their supervision in the exercise of their public office;
c. by persons entrusted with public authority of property that belongs to the State, the provinces, the municipalities or other public institutions, insofar this property is entrusted to the supervision of these persons;
are null and void and force the acquiring partie(s) to pay for damages
- 2. Paragraph 1 under point (a) does not concern a last will or a statement mortis causa made by a testator for the benefit of his legal heirs, nor does it concern juridical acts by virtue of which these heirs acquire property from the heritage (deceased’s estate) of such a testator.
- 3. In the situation meant in paragraph 1 under point (c) the juridical act is valid if it is performed with approval of the Minister of Justice or if it concerns a sale in public. If the juridical act necessarily implicates the acquisition of one of the above mentioned properties by a member of the Municipality Council or an Alderman or, respectively, by the Mayor of a municipality, then the approval meant in the previous sentence must be granted by the Executive Committee of the province in whose territory the involved municipality is located or, respectively, the Royal Governor of the Province in whose territory the involved municipality is located.

Article 3:44 Defective will for performing a juridical act
- 1. A juridical act is voidable when it has been performed under the influence of threat, fraud or abuse of circumstances.
- 2. Threat is legally present when someone induces another person to perform a juridical act under the influence of an unlawful intimidation to hurt him or a third party in person or property. The threat must be of such a degree that reasonable evaluating people could have been influenced by it in a similar way.
- 3. Fraud is legally present when someone induces another person to perform a juridical act by deliberately making an incorrect statement, by deliberately concealing a fact that had to be revealed or by another artifice. However, generally described presentations or offers do not in itself result in fraud, even when they are incorrect.
- 4. Abuse of circumstances is legally present when someone who knows or should have known that another person might be induced to perform a juridical act because he is under the influence of particular circumstances, like a state of emergency, dependency, thoughtlessness, an addiction, an abnormal mental condition or inexperience, nevertheless has stimulated this other person to perform this juridical act, although what this someone knew or should have known, should have refrained him from doing so.
- 5. If a statement has been made under the influence of threat, fraud or abuse of circumstances caused by someone who is not a party to a juridical act, then it is not possible to appeal to this legal defect towards a counterparty who had no reason to assume that it existed.

Article 3:45 Fraudulent conveyance
- 1. If a debtor, although legally not obliged to do so, has performed a juridical act, while he knew or should have known that the recovery rights of his creditors would be harmed as a result, then this juridical act is voidable on the ground of fraudulent conveyance. This ground for voidability may be invoked by every third person (creditor) whose recovery rights against the debtor have been harmed as a result of this juridical act, irrespective whether his debt-claim or right against the debtor has come to existence before or after the moment on which the before mentioned juridical act was performed.
- 2. A not gratuitously performed juridical act, either of a more-sided (multilateral) nature or of a one-sided (unilateral) nature but addressed to one or more specific persons, is only voidable on the ground of fraudulent conveyance if the other party, with or towards whom the debtor has performed it, also knew or ought to have known that it would harm the recovery rights of the debtor’s creditors.
- 3. When a gratuitously performed juridical act has been nullified on the ground of fraudulent conveyance, then this nullification has no effect against the favoured person if he did not know and neither ought to have known that this juridical act harmed the recovery rights of one or more creditors of the person who preformed this act with or towards him, but only insofar this favoured person proves that he does not enjoy any advantage of this juridical act (anymore) at the moment on which it was nullified by an extrajudicial declaration of a creditor or at the moment on which the legal claim for a judicial nullification was filed in court.
- 4. A creditor who nullifies a juridical act which is voidable on the ground of fraudulent conveyance, is only able to nullify it on his own behalf and not further than necessary to undo the harm that it has inflicted on his recovery rights.
- 5. Where a third person has acquired a property right in or related to an asset which once formed the object of a voidable juridical act between other parties, which act been nullified on the ground of fraudulent conveyance, then this property right will be respected, provided that the third person acted in good faith when he acquired it and that he has not obtained it gratuitously. The nullification of a juridical act on the ground of fraudulent conveyance has no effect towards a third person who has gratuitously acquired a property right in relation to an asset as meant in the previous sentence, yet only if this third person proves that he does not enjoy (anymore) any advantage of this juridical act at the moment on which the asset is claimed from him.

Article 3:46 Legal presumption of the existence of fraudulent conveyance
- 1. If the juridical act that harms the recovery rights of one or more creditors, is performed within one year before its nullification and the debtor had not yet legally committed himself before the start of this period to perform that act, then there is a legal presumption that the involved persons on both sides of this juridical act knew or should have known that the before-mentioned recovery rights would be harmed as a result of this juridical act, if it concerns:
1°. an agreement within which the value of the obligation of the debtor considerably exceeds the value of the obligation of his counterparty;
2°. the performance of a not yet due and demandable debt or the provision of security for such a debt;
3°. a juridical act performed by the debtor, who is a natural person, with or towards:
a. his spouse, his child or foster child, his father or mother, his grandfather or grandmother, his grandchild, his brother or sister or a child of his brother or sister;
b. a legal person in which he or one of the persons mentioned above under (a), is a member of the Board of Directors or of the Supervisory Board, or in which he or one of these persons, independently or jointly, take part as a shareholder, directly or indirectly, for at least one half of the issued share capital;
4°. a juridical act performed by a debtor, who is a legal person, with or towards a natural person:
a. who is a member of the Board of Directors or of the Supervisory Board of the debtor or who is this member’s spouse, child, foster child, father, mother, grandfather, grandmother, grandchild, brother or sister or the child of this member’s brother or sister;
b. who, independently or jointly with his spouse or one of the other persons mentioned above under (a), take part as a shareholder, directly or indirectly, for at least one half of the issued share capital of the debtor;
c. whose spouse, child or foster child, father or mother, grandfather or grandmother, grandchild, brother or sister or a child of this brother or sister, independently or jointly, take part as a shareholder, directly or indirectly, for at least one half of the issued share capital of the debtor;
5°. a juridical act performed by a debtor, who is a legal person, with or towards another legal person:
a. if one of these legal persons is a member of the Board of Directors of the other;
b. if a member of the Board of Directors of one of these legal persons, which member is a natural person, is also a member of the Board of Directors of the other legal person or if this member’s spouse, child, foster child, father, mother, grandfather, grandmother, grandchild, brother or sister or the child of this member’s brother or sister is a member of the Board of Directors of the other legal person;
c. if a natural person, who is a member of the Board of Directors or of the Supervisory Board of one of these legal persons, or if this member’s spouse, child, foster child, father, mother, grandfather, grandmother, grandchild, brother or sister or a child of this brother or sister, independently or jointly, take part as a shareholder, directly or indirectly, for at least one half of the issued share capital of the other legal person;
d. if the same legal person, or the same natural person, whether with or without his spouse, child, foster child, father, mother, grandfather, grandmother, grandchild, brother or sister or a child of his brother or sister, take part as a shareholder, directly or indirectly, for at least one half of the issued share capital of both legal persons;
6°. a juridical act performed by a debtor, who is a legal person, with or towards another legal person who is legally connected with the same group of companies as the debtor himself.
2. With a ‘spouse’ is equated a registered partner or another life companion.
3. By a ‘foster child’ is understood a person who is durably raised and cared for by the debtor as if it was his own child;
4. A person who, less than a year before the nullification of the voidable juridical act, still was a member of the Board of Directors or of the Supervisory Board or a shareholder, is equated with a member of the Board of Directors or of the Supervisory Board or a shareholder.
5. If a member of the Board of Directors of a legal person, which legal person in itself is a member of the Board of Directors of a third legal person, itself is also a legal person, then this last legal person is equated with the legal person who is a member of the Board of Directors of this third legal person.

Article 3:47 Legal presumption of fraudulent conveyance when juridical acts are performed gratuitously
When the recovery rights of one or more creditors have been harmed by a juridical act that has been performed gratuitously by the debtor within one year before someone has invoked this ground of voidability, then there is a legal presumption that the debtor knew or ought to have known that the before-mentioned recovery rights would be harmed as a result of this juridical act.

Article 3:48 Extension of the scope of the term ‘debtor' within the principle of fraudulent conveyance
For the purpose of the three previous Articles the term ‘debtor’ includes a person whose property serves as security for the debt of someone else.

Article 3:49 Ways to nullify a voidable juridical act
A voidable juridical act is nullified either by an extrajudicial declaration or by a court's judgment.

Article 3:50 Extrajudicial nullification
- 1. An extrajudicial declaration for the nullification of a voidable juridical act must be addressed by the person in whose interest the invoked ground of voidability exists, to those persons who are a party to the voidable juridical act.
- 2. Where a voidable juridical act, related to registered property, already has lead to a registration in the public registers or to the drawing up of a notarial deed necessary to make a legal delivery, this juridical act can be nullified only by means of an extrajudicial declaration if all parties go along with its nullification.

Article 3:51 Judicial nullification
- 1. A judicial decision results in the nullification of a voidable juridical act when the court acknowledges in its decision an appeal to a ground of voidability.
- 2. A right of action to nullify a voidable juridical act must be invoked against the persons who are a party to the juridical act.
- 3. An appeal to a ground of voidability is possible at any time if it is made to parry a lawsuit or another legal action that is based on an alleged voidable juridical act. He who makes such an appeal, has to report this to all persons who are a party to that juridical act, but who are not involved as a party in the legal proceedings.

Article 3:52 Prescription of legal actions based on the voidabillity of a juridical act
- 1. A right of action to nullify a voidable juridical act becomes prescribed:
a. in case of a lack of legal capacity: three years after this incapacity has ended, or, if the natural person without legal capacity had a legal representative, three years after his legal representative became aware that this natural person had performed this specific juridical act;
b. in case of threat or abuse of circumstances: three years after this influence has stopped to be effective;
c. in case of fraud, mistake or fraudulent conveyance: three years after the fraud, mistake or fraudulent conveyance has been discovered;
d. in case of another ground of voidability: three years after the right to appeal to this ground has become available to the person who may invoke it.
- 2. As soon as a right of action for the nullification of a voidable juridical act has become prescribed, the person for whom this legal action was available is no longer able to nullify this juridical act on the same ground of voidability by means of an extrajudicial declaration.

Article 3:53 Effects of the nullification of a voidable juridical act
- 1. The nullification of a voidable juridical act has retroactive effect to the moment on which that act was performed.
- 2. If it is complicated to undo the already set in results of the nullified voidable juridical act, then the court may deny the effects of the nullification entirely or partially. When a party takes an unreasonably advantage of such a denial, the court may charge him with an obligation to pay a cash benefit to the party for whom this denial is disadvantageous.

Article 3:54 Offer to repair the disadvantageous effects of the voidable juridical act
- 1. The right to appeal to an abuse of circumstances with the purpose to nullify a more-sided (multilateral) juridical act, ceases to exist when the opposite party, within appropriate time, presents an alternative for the original effects of the voidable juridical act, that puts aside the disadvantageous results of that act sufficiently.
- 2. Upon the request of one or more parties, the court may also, instead of nullifying the voidable juridical act on the ground of an abuse of circumstances, modify its original effects in order to undo its disadvantageous results.

Article 3:55 Confirmation of a voidable juridical act and the construction of a time-limit to nullify a voidable juridical act
- 1. The right to appeal to a ground of voidability with the purpose to nullify a voidable juridical act ceases to exist when the person to whom this right is available has confirmed the validity of the involved juridical act after the moment on which the prescription period for a right of action for a nullification, based on that same ground, has started to run for him [in the meaning of Article 3:52].
- 2. The right to appeal to a ground of voidability with the purpose to nullify a voidable juridical act ceases to exist as well when an immediately interested person has set a reasonable period in which the person for whom this right of nullification is available has to make a choice between a confirmation or a nullification of the voidable juridical act and this person does not make such a choice within that period.

Article 3:56 The term ‘party’ in the Articles 3:55 to 3:55 DCC
For the purpose of Articles 3:50 up to and including 3:55 the term ‘party’ also refers to:
a. in case of one-sided (unilateral) juridical acts addressed to one or more specific persons: those persons;
b. in case of other one-sided (unilateral) juridical acts: persons with an immediate interest in the validity of the involved juridical act.

Article 3:57 Required approval of a third person
When a juridical act, in order to produce its legal effects, requires an additional consent, authorisation, mandate or other kind of approval of a person who is not a party to that act, then any person with an immediate interest may give notice to all parties to this juridical act that this act will not affect him in any way when the required approval of the third person is not obtained within a fixed reasonable period of time as set in that notification.

Article 3:58 Ratification
- 1. If a legal requirement, necessary for the validity of a juridical act, has been fulfilled only after the moment on which that act was performed, but all immediately interested persons who in the meantime could have appealed to this ground of invalidity have - within the period between the performance of this juridical act and the fulfilment of that necessary legal requirement - regarded this act as a valid juridical act, then this juridical act has been ratified with that.
- 2. The previous paragraph does not apply to the situation in which a juridical act was null and void on the ground that the acting party initially was a minor or an adult placed under guardianship who had no legal capacity, but who after a while has obtained that capacity because he has reached the age of legal majority or, respectively, his adult guardianship was lifted.
- 3. Rights of third persons obtained in the meantime, are no obstacle for a ratification, on the condition that they are respected.

Article 3:59 Extension of the applicability of Section 3.2 DCC
The statutory provisions of the present Section apply accordingly outside the field of property law as far as the nature of the juridical act or of the legal relationship does not oppose to this.