Articles

Dutch Supreme Court reconsiders its 1989 Vis q.q./NMB Judgment: all money transfers credited to a payee's bank account after bankruptcy of the payor must be reimbursed to the payor's bankrupt estate

Dutch Supreme Court reconsiders its 1989 Vis q.q./NMB Judgment: all money transfers credited to a payee's bank account after bankruptcy of the payor must be reimbursed to the payor's bankrupt estate

Dutch Supreme Court reconsiders its 1989 Vis q.q./NMB Judgment: all money transfers credited to a payee's bank account after bankruptcy of the payor must be reimbursed to the payor's bankrupt estate

30.04.2015 NL law

In a judgment dated 20 March 2015, the Dutch Supreme Court ruled that all banks and intermediaries involved in the execution of a bank transfer, including the bank responsible for recording receipt of the bank transfer into the account held with it by the payee, qualify as parties whose services are directly or indirectly used by the payor in connection with the bank transfer. 

Therefore, according to the Dutch Supreme Court, all bank transfers initiated before, but credited to a payee's bank account after, bankruptcy of the payor are now eligible for reimbursement to the payor's bankrupt estate upon demand by the bankruptcy administrator.

Dutch Supreme Court 20 March 2015 (ECLI:NL:HR:2015:689)

One of the general principles of Dutch bankruptcy law is that a bankrupt debtor can no longer dispose of any assets belonging to his bankrupt estate from the date bankruptcy is declared. In its 1989 Vis q.q./NMB judgment, the Dutch Supreme Court ruled that a bank transfer received by a creditor of a bankrupt debtor must be reimbursed to the bankrupt estate if, on the day of bankruptcy, the bank processing that bank transfer on behalf of the bankrupt debtor (the "Payor's Bank") had not yet completed all necessary actions in order to effect the bank transfer. The actions to be carried out by the Payor's Bank generally include (i) debiting the account held by the payor and, if the bank account of the payee is held with another Dutch bank (the "Payee's Bank"), (ii) debiting the account held by the Payor's Bank with the Dutch Central Bank, and (iii) instructing the Dutch Central Bank to credit the account held by the Payee's Bank with the Dutch Central Bank. In order to complete the bank transfer, the Payee's Bank must credit the bank account held with it by the payee. Pursuant to the 1989 Vis q.q./NMB judgment, a bank transfer received by a payee after a payor's bankruptcy was deemed final if the Payor's Bank had completed the actions to be taken by it prior to the date of bankruptcy, irrespective of whether the Payee's Bank had credited the bank account held with it by the payee.

In its recent judgment, the Dutch Supreme Court held that all banks and intermediaries involved in the execution of a bank transfer, including the Payee's Bank, qualify as parties whose services are directly or indirectly used by the payor in connection with the bank transfer. Therefore, according to the Dutch Supreme Court, all bank transfers credited to a payee's bank account on or after the day of bankruptcy of the payor are now eligible for reimbursement to the payor's bankrupt estate upon demand by the bankruptcy administrator.

The Dutch Supreme Court creates a simple (and bankruptcy administrator-friendly) new rule to assess whether or not a bank transfer made by a bankrupt payor must be reimbursed to the bankrupt estate: if the bank transfer is initiated before, but credited to the payee's bank account on or after the day of bankruptcy, the bankruptcy administrator can demand that the bank transfer is reversed. The Supreme Court stated in its decision that the new rule does not apply to bankruptcies declared prior to 20 March 2015.

 

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