Dutch Civil Code

Book 6 The law of obligations

Title 6.2 Passage of debt-claims and debts and waiver of debt-claims

Section 6.2.1 Effects of the passage of a right to a performance (passage of debt-claims)

Article 6:142 Passage of a debt-claim includes passage of accessory and supporting rights
- 1. When debt-claim (right to a performance) passes to a new creditor, this new creditor will not only acquire the primary right to the performance but also all accessory rights attached to it, such as rights derived from a mortgage or pledge or a surety [all established as security for the passed debt-claim], privileges and the power to enforce an existing executorial title with regard to the debt-claim or its accessory rights.
- 2. The accessory rights include the rights (entitlements) of the former creditor to contractual interest, a contractual penalty or a periodic penalty payment imposed by the court, except as far as the interest was already due and demandable or the contractual penalty or periodical penalty payment was already forfeited at the moment on which the debt-claim passed to the new creditor.

Article 6:143 Evidence supporting the passed debt-claim and its accessory rights
- 1. When a debt-claim passes to a new creditor, the former creditor must hand over to the new creditor all evidence in support of the debt-claim and its accessory rights. Where the former creditor still has an interest in such supporting documents himself, he only has to hand over a duplicate (copy) or extract of these documents if the new creditor asks him to do so and the new creditor is prepared to bear the involved costs; this duplicate (copy) or extract must have a similar evidential value as the original supporting document.
- 2. The former creditor also has to hand over executorial titles as meant in the previous Article; where the former creditor still has an interest in these legal documents himself, he must give the new creditor the opportunity to use them to proceed to the enforcement to which he is entitled.
- 3. In the event that the entire debt-claim has passed to a new creditor, the former creditor must hand over to the new creditor all assets which he holds as collateral (security) for that debt-claim.
- 4. In the event that the passed debt-claim is secured by a mortgage, the former creditor must, upon request, cooperate with the new creditor in order to establish that the passage of the debt-claim shows from the public registers for registered property.

Article 6:144 Former creditor vouches for the new creditor with regard to duties imposed on him
- 1. Where the transfer (assignment) of a debt-claim brings along that also one or more legal duties, resulting from the quality of being a creditor or from accessory rights, shall pass to (shall become imposed on) the new creditor, the transfer (assignments) takes place under the guarantee of the former creditor towards the debtor that the new creditor will comply with these duties.
- 2. Paragraph 1 does not apply to a transfer of a debt-claim to order or to bearer in accordance with Article 3:93 of the Civil Code.

Article 6:145 Means of defence of the debtor
When a debt-claim passes to a new creditor, this has no effect for the means of defence that are available to the debtor.

Article 6:146 Means of defence when a debt-claim to order or to bearer is transferred
- 1. After a debt-claim to order or to bearer has been transferred in accordance with Article 3:93 of the Civil Code, the debtor cannot raise a defence against the new creditor or his legal successors as far as this defence is based on the debtor’s legal relationship with the former creditor, unless the new creditor was aware of that defence at the moment of the transfer or he ought to have been have been aware of it at that moment in view of the information placed on the negotiable document itself.
- 2. Nevertheless, an appeal to legal incapacity or a lack of authorization (to perform juridical acts) can be raised effectively against a new creditor who was not aware of this legal defect if, at the time of the transfer, this defect could have been known from a registration in a public register instituted under law with the purpose to enable people to obtain knowledge of facts on which such legal incapacity or lack of authorisation is based.

Article 6:147 Forged negotiable document
In case of a transfer of a negotiable document to bearer or to order, the person who is defined in that document as debtor and who can be held accountable for the fact that this document has been put into circulation against his will or that his signature or the document itself is forged, loses his right to invoke this legal defect against a person who has acquired this document in good faith as well as against the legal successors of this person.

Article 6:148 Limited property rights established on a debt-claim to bearer or to order
Articles 6:146 and 6:147 apply accordingly in the event that a limited property right has been established on a debt-claim to bearer or to order.

Article 149 Nullification or rescission by the debtor
- 1. Where the debtor, after the debt-claim has passed to a new creditor under particular title, exercises in his relation to the original creditor his right to nullify or rescind the juridical act from which that debt-claim results, he must inform the new creditor of this as soon as possible, unless the effects of this nullification or rescission cannot be invoked against the new creditor.
- 2. After the debtor’s right of action to nullify or rescind the juridical act has become prescribed, an appeal to a ground for the nullification or rescission, made in defence of a legal claim or another legal remedy based on that juridical act, must be addressed to the new creditor; subsequently the debtor must inform the original creditor about this defence as soon as possible.
- 3. After the debtor has been notified that the debt-claim is encumbered with a limited property right, the previous paragraphs apply accordingly when he exercises his right to nullify or rescind the juridical act from which that debt-claim results.

Section 6.2.2 Subrogation

Article 6:150 Grounds for subrogation
A debt-claim passes to a third person by means of subrogation:
a. if property of this third person has been foreclosed (sold under execution) in order to settle that debt-claim;
b. if this third person has performed (settled) the debt-claim himself because his property serves as security for it;
c. if this third person has performed (settled) the debt-claim himself to prevent that property, not belonging to him, will be foreclosed (sold under execution), provided that through this foreclosure (sale under execution) he would lose his own title or right to that property or the performance of one of his own debt-claims would become endangered;
d. if this third party has settled the debt-claim on behalf of the debtor by virtue of an agreement with that debtor, provided that the creditor, at the moment that his debt-claim was satisfied, already knew of this agreement or already was notified of its existence.

Article 6:151 Restricted subrogation
- 1. A subrogation in accordance with Article 6:150 has no effect as far as the third person himself is accountable for this debt in his internal relationship with the debtor.
- 2. The rights of the creditor towards sureties and persons who are no debtor themselves, yet liable, shall only pass to the third person in proportion to the parts for which these persons each are accountable for the debt in their internal relationship with each other.

Article 6:152 Internal contribution
- 1. Where a third person has acquired a debt-claim by means of subrogation as meant in Article 6:150 and he is not able to recover it, in full or in part, from the debtor, the irrecoverable part of the debt-claim will be imputed to this third person and the persons meant in paragraph 2 of the previous Article, proportionally to the part for which each of them was liable towards the creditor at the moment on which the third person performed (settled) the debt-claim.
- 2. A third person who has acquired a debt-claim by means of subrogation as meant in Article 6:150 cannot claim a higher amount from the other persons involved in the imputation of the irrecoverable part than the original creditor could have claimed from them at the moment on which the third person performed (settled) the debt-claim.
- 3. Each of the persons involved in the imputation of the irrecoverable part of the subrogated debt-claim remains entitled to recover his added contribution from the persons who were unable to pay their internal contribution.

Article 6:153 Contractual interest
Where the primary right in a debt-claim is subrogated, the third person is only entitled to the stipulated contractual interest as of the moment on which the debt-claim has passed by subrogation.

Article 6:154 The original creditor may not damage the third person
The creditor is towards a third person who, in the event that he performs the debt-claim will be subrogated, obliged to refrain himself from each behaviour (conduct) which will be detrimental to the rights that this third person may expect to obtain as a result of the subrogation.

Section 6.2.3 Substitution of debts and transfer of a contractual position

Article 6:155 Taking over a debt (‘debt assumption’)
A debt passes from the debtor to a third party if this third party takes it over from the debtor. Towards the creditor the passage of the debt (debt assumption) shall only have effect if he has given his approval to it after the debtor and third party have notified him of the take over (debt assumption).

Article 6:156 Creditor’s approval in advance to a debt assumption
- 1. Where the creditor has given his approval in advance to a debt assumption, the debt passes as soon as the debtor has come to an agreement over such a debt assumption with a third party en they have notified the creditor thereof.
- 2. The creditor cannot revoke an approval which he has given in advance, unless he has reserved himself this right.

Article 6:157 Passage of accessory rights
- 1. From the day that the debt has passed to the new debtor, the creditor can no longer exercise the accessory rights related to his debt-claim against the former debtor, but only against the new debtor.
- 2. A pledge or a mortgage on the property of one of the parties to the debt assumption, serving as security for the debt that is taken over, remains in force; a pledge or a mortgage on the property of someone else and rights from a suretyship, however, cease to exist when the debt is taken over by a new debtor, unless the pledgor, mortgagor or surety already had agreed that in such an event the security remains in force.
- 3. Privileges attached to certain assets, that do not include a right of recovery to be exercised against other persons than the parties to the debt assumption, cease to exist when the debt is taken over, unless the debt assumption takes place within the framework of a transfer of a business or enterprise to which the asset belongs to which the privilege is attached. After the debt is taken over, the privileges attached to the property of the debtor are regarded as privileges attached to the property of the new debtor.
- 4. Stipulated contractual rights, contractual penalties and periodic penalty payments imposed by the court, that were incumbent on the debtor before the debt was taken over, must be performed by the new debtor as far as they have become due and demandable or forfeited, respectively, after the moment that the debt had passed.

Article 6:158 Nullity of the agreement between the old and new debtor
If the legal relationship between the former and new debtor, on the basis of which the debt was taken over, is null and void or if it has been nullified or rescinded, then the creditor may pass the debt back to the former debtor by means of a notification addressed to both involved parties, in which he states that the debt is indebted again by the former debtor; the former and new debtor may to this end set a reasonable period within which the creditor must give such a notification on the penalty of losing the right to pass the debt back to the former debtor.

Article 6:159 Transfer of a contractual position
- 1. A party to an agreement may, with the cooperation of his counterparty, transfer his legal relationship with that counterparty to a third party by means of a private or notarial deed, drawn up for this purpose between him and that third party.
- 2. As a result of such a transfer all rights and obligations that have arisen or will arise from the agreement for the transferring party will pass to the third party, as far as parties have not agreed otherwise with regard to secondary (minor) or already due and demandable rights or obligations.
- 3. Articles 6:156 and 6:157, paragraph 1 up to and including 3, apply accordingly to a transfer of a contractual position as meant in the present Article.

Section 6.2.4 Waiver and merger of debt-claims

Article 6:160 Waiver of his debt-claim by the creditor
- 1. An obligation ceases to exist when the debtor and creditor have entered into an agreement with each other in which the creditor waives (abandons) his right to the performances (debt-claim) that were indebted by the debtor because of that obligation.
- 2. An offer of the creditor, addressed to the debtor, to waive his debt-claim gratuitously, is considered to be accepted if the debtor, after he has become aware of this offer, has not rejected it without delay.
- 3. Articles 6:48, paragraph 1 and 2, and 6:49, paragraph 1 up to and including 3, apply accordingly to a waiver of an obligatory claim.

Article 6:161 Merger of the debt-claim and the opposite debt
- 1. An obligation ceases to exist as a result of a merger when the passage of a debt-claim or a debt to another property has the effect that the capacity of debtor and creditor have become united in one and the same person.
- 2. The previous paragraph does not apply:
a. as long as the debt-claim and the debt belong to legally separated properties in which the involved person, to whom the debt-claim and debt belongs, participates;
b. when a debt-claim to bearer or to order has been transferred in accordance with Article 3:93 of the Civil Code;
c. if the fact that the capacity of debtor and creditor are united in one and the same person is the result of a juridical act under a condition subsequent, as long as it is not certain that this condition will not be fulfilled.
- 3. When an obligation has ceased to exist as a result of a merger, this has no effect on the rights of third persons.