Background: transferability of claims as an option under Dutch law
Under Dutch law, the transferability of a claim can be excluded by means of an agreement to that effect between the creditor and the debtor. By agreeing on such provision, it becomes legally impossible to transfer the claim to another party (the agreement has ‘property law effect’). A debtor may wish such an exclusion to avoid being confronted with a different creditor. For instance because such a new creditor might be stricter in enforcing the claim and might be less accommodating because of an established commercial relationship. Furthermore, the Dutch Supreme Court decided in the Oryx/Van Eesteren case (ECLI:NL:HR:2003:AF0168) that a creditor and a debtor can also exclude the possibility of pledging a claim (while not excluding the transferability of the claim).
In Coface/Intergamma (ECLI:NL:HR:2014:682), the Supreme Court reiterated that it needs to be carefully ascertained whether a contractual prohibition to transfer a claim is actually meant to affect the transferability in and of itself. If not, a valid transfer is still possible, albeit that the creditor breaches its contractual obligation if he transfers the claim. Whether parties intended such a ‘property law effect’, is a matter of interpretation of the agreement. The Supreme Court ruled in Coface that as a default, it should be assumed that parties, when excluding transferability, only intended to bind themselves contractually, unless it follows from the wording of the contract, that the creditor and the debtor also intended to make the claim non-transferable under the law of property.
Why can a claim not be pledged if the creditor and the debtor agreed that it is non-transferable?
Following these decisions, the question arose whether a clause excluding the transferability of a claim also always makes it impossible to pledge this claim. In in its decision of 1 July (ECLI:NL:HR:2022:984), in a dispute between Rabobank and the liquidator of a bankrupt farmer, the Dutch Supreme Court dealt with this question. It decided that if a creditor and a debtor agree that the claim cannot be transferred and that such agreement is not only a matter of contract, but also affects property rights, by definition a pledge cannot be established either. Does that make sense?
There are certainly good arguments in favour of the Supreme Court’s decision. It referred to Articles 3:81(1) and 3:228 of the Dutch Civil Code (DCC), providing that pledges can be established on transferable property. If, therefore, a creditor and a debtor agree that the creditor’s claim cannot be transferred, it follows from these articles that such claim cannot be pledged either. That also ties in with the fact that a pledgee, when enforcing a pledge, can choose whether to do so by collecting the claim (Art. 3:246 DCC) or by selling the claim. If a non-transferable claim could be pledged, that would limit the pledgee’s execution possibilities to only one option: the right to collect the claim. This is problematic if the pledged claim is a long-term loan and will not fall due for a long time.
Arguments against the Supreme Court’s decision
However, there are also counterarguments. When enacting the Articles 3:81(1) and 3:228 DCC, referred to by the Supreme Court, the legislator does not seem to have considered the issue at hand. Therefore, there appears to have been room for a different interpretation. Moreover, party autonomy is a strong argument in favour of allowing a creditor and a debtor to agree on the non-transferability and non-pledgeability separately, instead of linking the two automatically. The fact that allowing a non-transferable claim to still be pledgeable would limit the pledgee’s execution possibilities to collection of the claim only, need not stand in the way of this. Most claims are enforced by collection anyway.
These and other counterarguments were noted – but rejected – by the Advocate General in her advisory opinion. The Supreme Court provided only the limited reasoning set out above, without addressing the matter in great detail. This may also be due to the fact that the legislator is considering prohibiting contractual clauses entailing pledgeability and/or transferability. In 2020 a draft bill was issued to ban “pledge and transferability prohibitions” by commercial parties, or in any event partly, since the draft bill contains a number of exceptions. See the Stibbeblog of 18 June 2020 by Rein van Helden (link in Dutch).
With the Supreme Court’s decision in Rabobank/Ten Berge q.q. it has been decided that claims that have been made non-transferable under property law by contractual agreement between a creditor and a debtor, cannot be pledged either. Agreeing that the claim is non-transferable in a property law sense, ‘automatically’ (ipso jure) makes the claim non-pledgeable as well, provided that it is clear from the wording of their agreement, that the parties intended to make the creditor’s claim non-transferable (and therefore non-pledgeable) under property law and not only under contract law. The Rabobank/Ten Berge q.q. decision therefore also re-emphasizes the importance of being explicit about such intention.t