Bankruptcy
Act
TITLE III DEBT REPAYMENT SCHEME FOR NATURAL
PERSONS
Chapter 2 Legal Effects of the Application of a Debt Repayment Scheme
Article 295 Liquidation estate
- 1. The liquidation estate of the debtor shall
be comprised of the property of the debtor at the time of the judgment
ordering the application of the Debt Repayment Scheme and the property
that he will acquire during the application of that scheme.
- 2. From the income and periodic distributions,
howsoever described, which the debtor will acquire, an amount equal to
that part which is exempted from attachment as referred to in article
475d of the Code of Civil Procedure shall, without prejudice to paragraph
2, remain outside the liquidation estate.
- 3. The magistrate ('rechter-commissaris')
may, upon the request of the debtor or administrator or of his own motion
(ex officio), increase by means of a written order the amount meant in
paragraph 2 with a nominal amount to be set in that written order. The
magistrate in ('rechter-commissaris') may set additional conditions
in his written order and may grant retroactive effect to it.
- 4. Furthermore the following assets shall
remain outside the debtor’s liquidation estate:
a. assets acquired by the debtor in another
way than gratuitously pursuant to a contract made during the application
of the Debt Repayment Scheme, if the performance of the debtor related
to such acquisition does not burden the liquidation estate;
b. household effects insofar as not excessive
as referred to in Article 5 of Book 3 of the Civil Code;
c. that what is mentioned in Article 21, under
(1°), (3°), (5°), (6°) and (7°);
d. the amount determined by the court or by
the magistrate ('rechter-commissaris'), in accordance with Article
21, under (4°).
- 5. An asset as referred to in paragraph 4,
under (a), shall nevertheless fall within the debtor’s liquidation
estate if its value considerably exceeds the value of the performance
related to the acquisition. Article 22a applies accordingly.
- 6. Article 22 applies accordingly with respect
to paragraph 2 and paragraph 4, under (c) and (d). Article 22a shall apply
accordingly.
Article 295a [repealed on 01-01-2008]
Article 296 No right of disposition; restricted right
of administration
- 1. As a result of the judgment ordering the
application of the Debt Repayment Scheme, the debtor shall lose by operation
of law:
a. the right to dispose of property belonging
to the liquidation estate;
b. the right to perform and permit juridical
acts with regard to such property.
- 2. Upon the request of the administrator,
the debtor must deliver to him all property belonging to the liquidation
estate.
- 3. The magistrate ('rechter-commissaris')
may, upon the request of the debtor or administrator or of his own motion
(ex officio), determine, by written order, that the debtor shall administer
certain property specified for such purpose.
Article 297 Restricted capability of the debtor to perform juridical act
- 1. Without prejudice to Article 296, the
debtor may perform juridical acts independently.
- 2. Nevertheless, the debtor shall require
the consent of the administrator to perform the following juridical acts:
a. the entry into a credit transaction in the
meaning of the Financial Supervision Act;
b. the entry into contracts pursuant to which
he commits himself as surety or otherwise as co-debtor, gives a guarantee
on behalf of a third party or covenants to provide collateral for the
debt of a third party;
c. the making of gifts, with the exception
of usual gifts insofar those are not excessive.
- 3. A juridical act performed in breach of
the paragraph 2 is voidable and may be nullified. Only the administrator
may invoke such grounds of voidabillity.
Article 298 Liability of the liquidation estate for debts arisen after
the start of the Debt Repayment Scheme
The liquidation estate shall not be liable for obligations of the debtor
which arise after the judgment ordering the application of the Debt Repayment
Scheme, except insofar as the liquidation estate benefits as a result
thereof.
Article 299 Effect of the Debt Repayment Scheme on claims of creditors
of the debtor
- 1. A Debt Repayment Scheme shall have effect
on:
a. claims against the debtor existing at the
time of the judgement ordering the application of the Debt Repayment Scheme;
b. claims against the debtor which arise after
the judgment ordering the application of the Debt Repayment Scheme on
account of the nullification of a null and void or voidable contract in
which the debtor had entered into prior to that judgment;
c. claims for damages on account of a failure
in the performance which occurred in itself after the judgment ordering
the application of the Dept Repayment Scheme, yet in respect of a claim
acquired against the debtor prior to that judgment;
d. claims against the debtor which arise after
the judgment ordering the application of the Debt Repayment Scheme as
a result of the fulfilment of a condition subsequent accepted by the debtor
prior to that judgment;
e. claims against the debtor arisen pursuant
to Article 10 of Book 6 of the Civil Code on account of a legal relationship
existing at the time of the judgment ordering the application of the Debt
Repayment Scheme, which claims remained unsatisfied after that judgment.
- 2. During the application of the Debt Repayment
Scheme legal actions for the purpose of settlement of a claim falling
within the scope of the liquidation estate may not be instituted against
the debtor otherwise than by submitting that claim for verification.
- 3. Articles 57 to 59, inclusive, shall apply
accordingly.
Article 299a Claims related to debts for studies
- 1. A Debt Repayment Scheme shall not apply
to claims related to debts for studies to which Chapter 6 of the Studies
Financing Act 2000 (Wet studiefinanciering 2000) applies, except as far
as it concerns claims relating to overdue debts (arrears) referred to
in Article 6.8 of that Act, existing at the time of the order for application
of the Debt Repayment Scheme.
- 2. As long as a Debt Repayment Scheme applies,
the redemption phase referred to in Article 6.7 of the Studies Financing
Act 2000 (Wet studiefinanciering 2000) shall be suspended. During this
period no interest shall accrue on claims related to debts for studies.
Article 299b Right of retention
- 1. A creditor who has a right of retention
on a thing belonging to the debtor shall not lose such right by a judgment
ordering the application of the Debt Repayment Scheme.
- 2. Insofar as this is in the interest of
the liquidation estate, the administrator may return the thing to the
liquidation estate by payment in full of the claim in respect of which
the right of retention may be exercised.
- 3. The creditor may allow the administrator
a reasonable period to apply the provision of paragraph 2. If the administrator
has not returned the thing to the liquidation estate as provided by paragraph
2 within such period, the creditor may sell it with corresponding application
of the provisions applicable to the right of a pledge, or if it relates
to immovable property, of a mortgagee in regard of the foreclosure (sale
under execution) of a pledged or mortgaged asset without recourse to the
court (summary foreclosure). Upon a request of the administrator the magistrate
('rechter-commissaris') may extend such period one or more times.
- 4. In case of registered property, the creditor
must, in order not to forfeit the right of summary foreclosure, within
fourteen days of expiry of the period referred to in paragraph 3 serve
notice by writ on the administrator that he will proceed to foreclosure
and cause such writ to be recorded in the public registers.
- 5. The administrator may set a reasonable
period within which the creditor may exercise the right of summary foreclosure
in accordance with paragraph 3. If the creditor has not sold the thing
within this period, the administrator may demand that it is handed over
to him and sell it pursuant to Article 326 or 347, paragraph 2, without
prejudice to the priority ranking conferred on the creditor under Article
292 of Book 3 of the Civil Code. Upon the request of the creditor, the
magistrate ('rechter-commissaris') may extend this period one
or more times.
Article 300 Effect of a Debt Repayment Scheme for sureties and co-debtors
The Debt Repayment Scheme shall not apply (have no effect) for the benefit
of sureties and other co-debtors.
Article 301 Seizures (attachments) made before the start of the Debt Repayment
Scheme
- 1. A claim of the Tax Collector, referred
to in article 19 of the Tax Collection Act 1990 (Invorderingswet 1990),
shall not be admitted.
- 2. All attachment proceedings (foreclosures)
instituted at the time of the judgment ordering the application of the
Debt Repayment Scheme with the purpose to obtain recourse for claims against
the debtor shall be suspended.
- 3. Any attachment (seizure) made shall lapse
as of the day on which the application of the Dept Repayment Scheme has
been ordered by the court. The registration of a declaration issued for
this purpose by the magistrate ('rechter-commissaris') upon the
request of the administrator, shall authorise the keeper of the public
registers to delete the registration of such an attachment (seizure).
- 4. An attachment which has lapsed shall revive
as soon as the application of the Debt Repayment Scheme ends on the basis
of the provision of Article 350, paragraph 3, under (b), provided that
the property then still belongs to the liquidation estate. If registration
of the attachment in the public registers has been deleted, the revival
shall lapse if no writ for notification of the debtor of the revival has
been recorded within fourteen days of such revival.
- 5. Paragraph 2, 3 and 4 shall apply also
with regard to a foreclosure which has been started and an attachment
for the recovery of claims secured by a pledge or mortgage, insofar as
such foreclosure was not started or such attachment was not made on property
which constituted special collateral for such claims.
Article 302 Release of the debtor from detention
If the debtor is held in detention (imprisonment), he shall be released
by operation of law by a judgement ordering the application of a Debt
Repayment Scheme, unless the detention takes place for another reason
than on account of a claim in respect of which the Debt Repayment Scheme
applies.
Article 303 Interest accrued as of the start of the Debt Repayment Scheme
- 1. With effect from the start of the day
on which the judgment ordering the application of a Debt Repayment Scheme
was rendered, no statutory or contracted interest shall be due by the
debtor on claims in respect of which the Debt Repayment Scheme applies.
- 2. The obligation to pay such interest shall
revive with retroactive effect as soon as the application of the Dept
Repayment Scheme has ended on the basis of Article 312, paragraph 2, or
as of the start of the day on which the judicial decision for termination
of the Dept Repayment Scheme rendered pursuant to Article 350, paragraph
3, under (c) p to and including (g) has become final and binding.
- 3. The District Court may, in its judgment
ordering the application of the Debt Repayment Scheme or by later judgment,
declare paragraph 1 inapplicable with regard to interest due on a claim
which is secured by a mortgage taken out on registered property where
the debtor resides, if this is in the interest of the debtor’s liquidation
estate. After the Dept Repayment Scheme has been declared applicable,
the magistrate ('rechter-commissaris') may declare so by written
order upon the request of the administrator if this is in the interest
of the debtor’s liquidation estate.
Article 304 Obligations for the regular supply of gas, water, electricity
or heat
- 1. A counterparty may not, in relation to
the debtor, withhold the performance of an obligation resulting from an
agreement for the regular supply of gas, water, electricity or heat, required
to provide the primary necessities of life on the ground that the debtor
has not performed a financial obligation which already existed prior to
the judgment ordering the application of the Debt Repayment Scheme.
- 2. The non-performance by the debtor of an
obligation as meant in paragraph 1, which non-performance took place prior
to the judgment ordering the application of the Debt Repayment Scheme,
does not produce a legal ground for the rescission of an agreement as
meant in paragraph 1.
- 3. An appeal by the counterparty to a contractual
stipulation, specifying that a judicial decision ordering the application
of the Debt Repayment Scheme produces a legal ground for the rescission
of an agreement as meant in paragraph 1 or shall automatically lead to
a rescission of such agreement, shall only have effect if the administrator
has given his consent thereto.
Article 305 Lease and farm lease agreements
- 1. If the debtor is a lessee (tenant), then
the administrator or the debtor who acts with the administrator’s
authorisation may prematurely terminate the lease agreement, provided
that the termination takes place with due observance of the terms of notice
(notice periods) mentioned in Articles 228, paragraph 2, 271, paragraph
2, en 293, paragraph 2, of Book 7 of the Dutch Civil Code. Furthermore,
the agreed or customary notice periods must be observed, on the understanding,
however, that three months' notice will in any case be sufficient. If
rent has been paid in advance, no notice of termination of the lease can
be given at an effective termination date before the last day of the period
for which the rent as been paid already.
- 2. A non-performance by the debtor of a financial
obligation arisen from a lease agreement for residential space, which
non-performance took place prior to the judgment ordering the application
of the Debt Repayment Scheme, does not produce a ground for termination
or rescission of the lease agreement. Where, prior to the judgment ordering
the application of the Debt Repayment Scheme, a judgment for eviction
of residential space has been rendered on account of such a non-performance,
the enforcement of that judgment will be postponed during the application
of the Debt Repayment Scheme, on the condition that the rent accrued as
of the judgment ordering the application of the Debt Repayment Scheme
will be paid in time. The duration of the lease agreement is extended
with the period that the Debt Repayment Scheme is applicable.
- 3. The lessor (landlord) may terminate the
lease agreement prematurely if the debtor, in his relationship to the
lessor (landlord), does not comply with an obligation which has come to
existence after the judgment ordering the application of the Debt Repayment
Scheme, provided that notice of termination is given at an effective termination
date in conformity with a termination date as indicated by local custom
for such lease agreements. The second and third sentence of paragraph
1 shall apply.
- 4. If the debtor is a farm lessee (agricultural
lessee), paragraph 1, 2 and 3, shall apply accordingly.
Article 306 Null and void payments of claims from property not belonging
to the liquidation estate
A payment made for the settlement of claims to which the Dent Repayment
Scheme applies, yet made from property of the debtor which does not form
part of the liquidation estate, is null and void.
Article 307 Setting-off a claim against a debt to the debtor
- 1. A person who is both, debtor and creditor
of a person in respect of whom the Debt Repayment Scheme is ordered, may
only compensate (set off) his debt against a claim to which the Debt Repayment
Scheme applies if both, the claim and the debt, have come to existence
prior to the judgment ordering the application of the Debt Repayment Scheme.
- 2. Article 53, paragraph 2 and 3, apply accordingly.
Article 308 Imputation of payments from property not belonging to the
liquidation estate
A payment made by the debtor from property which does not form a part
of the liquidation estate shall not be imputed to a claim to which the
Debt Repayment Scheme applies.
Article 309 [repealed on 01-01-2008]
Article 309a assets pledged on account of a financial collateral agreement
Excluded from the property meant in Article 309, paragraph 1, are assets
pledged on account of a financial collateral agreement as referred to
in Article 51 of Book 7 of the Civil Code.
Article 310 Payment of claims of the debtor or creditor
to which the Debt Repayment Scheme does not apply
- 1. Upon the request of the administrator
or the debtor or of his own motion (ex officio), the magistrate ('rechter-commissaris')
may determine, by written order, that claims for the payment of a sum
of money, which claims belong to the debtor, but do not form a part of
the debtor’s liquidation estate, must be paid to the administrator.
The magistrate ('rechter-commissaris') may restrict the order
to a specified period and to specified claims.
- 2. The administrator shall notify the relevant
debtors of such claims by letter of the order referred to in paragraph
1.
- 3. Money received by the administrator pursuant
to paragraph 1 shall not become a part of the debtor’s liquidation
estate. The administrator shall keep a separate account in respect thereof.
- 4. Claims of creditors to which the Debt
Repayment Scheme does not apply and which have been designated by the
magistrate ('rechter-commissaris') for settlement, shall be settled
for and on behalf of the debtor by the administrator from the funds received
by him pursuant to paragraph 1.
Article 311 Continuation of the debtor’s enterprise on behalf of
the liquidation estate
- 1. Upon the request of the administrator
or the debtor or of his own motion (ex officio), the magistrate ('rechter-commissaris')
may determine, by written order, that the debtor may, over a period to
be set in that order, continue the conduct of his professional practice
or business on behalf of the liquidation estate. The magistrate ('rechter-commissaris')
may extend such a period each time and attach conditions to the order.
- 2. An order of the magistrate ('rechter-commissaris')
as referred to in paragraph 1, has as effect that the debtor may perform
all juridical acts for which the administrator has given his consent and
which are necessary for the normal conduct of the debtor’s professional
practice or business.
- 3. Claims resulting from a continuation of
a professional practice or business for which the debtor is authorised
pursuant to the present Article, including indebted rent, insofar imputable
to such continuation, are estate debts*).
*) Estate debts are debts which are
made by or with the consent of the administrator for account of the
liquidation estate; the involved creditor has a preferential claim (estate
claim) that must be satisfied first from the assets of the liquidation
estate.
Article 312 Declaration of bankruptcy due to unpaid claims to which the
Debt Repayment Scheme does not apply
- 1. During the application of a Debt Repayment
Scheme the debtor may be declared bankrupt on the basis of unpaid claims
to which the Debt Repayment Scheme does not apply.
- 2. In the event that the debtor is declared
bankrupt, the application of the Debt Repayment Scheme shall end by operation
of law. The liquidator in bankruptcy ('curator') shall publish
the ending of the Debt Repayment Scheme in the publication referred to
in Article 14, paragraph 3.
- 3. If, as a result of an objection, an appeal
or an appeal in cassation, the declaration of bankruptcy gets nullified,
then the application of the Debt Repayment Scheme shall revive by operation
of law. This shall be notified in the publication referred to in Article
15, paragraph 1, second sentence. Article 15d, paragraph 1, shall apply
accordingly.
Article 313 Application of other Articles during the application of the
Debt Repayment Scheme
- 1. Articles 24 up to and including 31, 34
up to and including 38a, 40 up to and including 52, 54 up to and including
56 and 60a up to and including 63a shall apply accordingly.
- 2. The decision meant in Article 63a, paragraph
1, first sentence, may be given as well by the District Court which orders
the application of the Debt Repayment Scheme, either of its own motion
(ex officio) or upon the request of the debtor.
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