Short Reads

Entitlement of the pledgee to enforce security attached to a receivable of the pledgor

Entitlement of the pledgee to enforce security attached to a receivable of the pledgor

Entitlement of the pledgee to enforce security attached to a receivable of the pledgor

14.04.2016 NL law

 

The Dutch Supreme Court has recently provided a ruling confirming the entitlement of the pledgee to enforce security attached to a receivable pledged to it.

 

The Dutch Supreme Court 18 December 2015 (ECLI:NL:HR:2015:3619)

This ruling addresses a question which is of great relevance to the Dutch finance practice: is the holder of a disclosed right of pledge over a receivable entitled to enforce a right of pledge over other receivables which was created as security for the receivable pledged to it? The Supreme Court ruled that in such a case, the entitlement of the pledgee to collect the receivable pledged to it also comprises the entitlement to enforce the security rights attached to that receivable. According to the Advocate General at the Supreme Court, although the above question has been widely answered affirmatively in legal literature, the ruling has provided welcome confirmation.

In this case, Marell had created a right of pledge over certain receivables owed to it by its debtors for the benefit of Pegas. Pegas had created a right of pledge over certain receivables owed to it by its debtors (including Marell) for the benefit of its financing bank. The bank had informed certain debtors of Marell that they could only discharge the receivables owed by them to Marell by making payment to the bank. Marell initiated interim relief proceedings against the bank, claiming that the bank must inform Marell's debtors that they can only discharge the receivables owed by them to Marell by making payment to Marell.

The question before the Supreme Court was whether the bank was entitled to collect the receivables owed by Marell's debtors to Marell which were subject to the right of pledge created by Marell for the benefit of Pegas. Previously, the Amsterdam Court of Appeal had ruled that the bank was precluded from collecting the receivables owed by Marell's debtors to Marell on the basis that repledging (herverpanding) is prohibited according to section 3:242 Dutch Civil Code, which sets out that a pledgee is not entitled to repledge the property pledged to him, unless this power has been unequivocally granted to him.

In view of the bank's entitlement to collect the receivables pledged to it, the Supreme Court ruled that the bank was also entitled to enforce any rights of pledge created over receivables owed by debtors of the pledgor to the pledgor as security for the receivables pledged to the bank. In practice, after having informed the debtors of the pledgor of the rights of pledge created over the receivables owed by those debtors to the pledgor, the bank was entitled to collect such receivables up to the amount of the receivables owed to it by the pledgor.

The Supreme Court succinctly dealt with the approach of the Court of Appeal regarding the prohibition on repledging and ruled that such prohibition relates to situations in which a pledgee conducts an act of disposition (beschikkingshandeling) in respect of property pledged to it by creating a right of pledge over such property. According to the Supreme Court, no such situation applies in the dispute between Marell and the bank. Pegas had not created a right of pledge over the receivables pledged to it by Marell. Instead Pegas had created a right of pledge over receivables owed to it by its debtors, including Marell. A right of pledge (created by Marell over certain receivables owed to Marell by Marell's debtors) was indeed attached to the receivables owed by Marell to Pegas, but this is not the same as the creation of a right of repledge (herverpanding) by Pegas over receivables owed to Marell by Marell's debtors which were pledged to Pegas.

This judgment is relevant for the Dutch finance practice because it further removes uncertainty about the status of rights of pledge on secured receivables. If a pledgee is entitled to enforce its right of pledge on receivables, it is also entitled to enforce security attached to such receivables.

 

Related news

07.08.2019 NL law
Roderik Vrolijk and Soeradj Ramsanjhal in Global Legal Insights - FinTech Edition 2019

Articles - Roderik Vrolijk and Soeradj Ramsanjhal have contributed to the 2019 FinTech edition of Global Legal Insights (GLI), providing the Netherlands chapter. The GLI FinTech 2019 edition covers approaches and developments in the FinTech sector with respect to regulatory and insurance technology, regulatory bodies, key regulations and regulatory approaches, restrictions and cross-border business in 26 jurisdictions.

Read more

23.07.2019 LU law
The Revised CSSF Cloud Circular

Articles - On 27 March 2019, the Luxembourg supervisory authority for the financial sector (the Commission de surveillance du secteur financier or CSSF) published the long-awaited CSSF Circular 19/714 amending the CSSF Circular 17/654 on IT outsourcing relying on a cloud computing infrastructure (the Revised Cloud Circular).

Read more

18.07.2019 NL law
ESMA publishes report on licencing of fintech firms across europe

Short Reads - On 12 July, the European Securities and Markets Authority ("ESMA") published a report on the status of licencing regimes of FinTech firms across the European Union ("EU").  The report is based on two surveys conducted by ESMA since January 2018, which gathered evidence from EU national competent authorities ("NCAs") on the licensing regimes of FinTech firms in their respective jurisdictions.

Read more

01.07.2019 NL law
Dutch government publishes plans to combat money laundering

Short Reads - The Dutch Minister of Finance and Minister for Justice and Security published a joint letter today (1 July 2019) that they sent to the Dutch Parliament containing plans to combat money laundering (click here to read the letter in full, in Dutch). These new plans follow recent scrutiny in the Netherlands and Europe relating to money laundering. Some of the plans are far reaching, and will lead to practical implications for our clients if these plans are transposed into Dutch law.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring